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[2005] All ER (D) 387 (Apr)

*O Ltd v Z

[2005] EWHC 238 (Ch)


Chancery Division

Lindsay J


27 April 2005



Practice and procedure - Interim remedies - Search and seizure order - Discovery of offensive material - Directions to computer expert in receipt of offensive material - Consideration of facts.

The claimant company, whose business was concerned with the development and sale of computer software, believed that the defendant, a former employee, had, on leaving the claimant's employ, wrongfully acquired or retained access to programs and other material the unlicensed use of which might have seriously harmed its business. The claimant applied for and obtained, without notice, a search order in respect of the defendant's home and of the computers and other recorded material at his home. In the course of the search, material was removed by the computer expert instructed to engage in the search. When conducting the search the supervising solicitor made no reference to self-incrimination and the defendant, at no stage, made any comments concerning the privilege against self-incrimination following consultation with his solicitors. When the expert examined the material he discovered pornographic paedophile material, that was completely irrelevant to the claimant's causes of action, that was, on the scale of 1-5, at level 4 and contrary to s 160(1) of the Criminal Justice Act 1988. The expert explained to the claimant's solicitors that evidence of criminal activity had been found on his search, and that he was concerned that he would be committing an offence under the Protection of Children Act 1978 if, complying with the implied obligation in the court order, the offensive material were to be returned to the defendant. The expert sought permission from the court for that material to be handed to the relevant prosecuting authority. The claimant, having gained as much as it was ever likely to do in its action against the defendant did not involve itself in the issue of what to do with the offensive material. The defendant sought at that stage to rely on the privilege against self-incrimination but subsequently did not appear. An advocate to the court was appointed and the Secretary of State for the Home Department intervened.

Both the advocate to the court and the Secretary of State contended that the offensive material should be disclosed to the relevant authorities.

The issue for the determination of the court was, in such circumstances, what direction should the court give to the expert.

The court ruled:

Having regard to factors identified in case authority, the fact that the defendant was able to, and did, consult his own solicitors privately, that there was no abuse of power on the part either of the court or the search party and the seriousness of the prima facie case appearing against the defendant, the court had to release the expert from the implied obligation and permit release of the offensive material to the police.

On the facts, there was a compelling prima facie case that the defendant was guilty of an offence, at least under the 1988 Act, and possibly under both the 1978 Act and the 1988 Act, however it was far from clear that he could have no defence. In the circumstances of the instant case, art 8 of the European Convention on Human Rights would not assist the defendant, and arts 6 and 17 would confer no protection. The court assumed that if the expert took the offensive material to the relevant authorities they would, at the very lowest, be likely to set in train enquiries into whether he had committed offences under the 1978 and 1988 Acts. Once the material was in the hands of the authorities it was impossible to see how, by way of some order made in civil proceedings, it could be rendered inadmissible in criminal proceedings against him. However, given the serving of the search order on the defendant and the warning given to him as to the probable consequences of his failure to comply with it, the material disclosed by the search was fairly to be described as produced by him under the compulsion of the court. The privilege was available to be claimed even in civil proceedings and was available before as well as after criminal proceedings had been launched. If there had been no further considerations the court would have allowed the defendant the protection of the privilege. However, on the facts of the instant case, the privilege had been lost by way of an objective look at the defendant's behaviour; he had handed the offensive material to a third party without claiming the privilege. In the events that happened, the defendant had already lost the privilege against self-incrimination before he first claimed it, and his late claim conferred no retrospective protection.

The court directed the expert to hand over to the relevant prosecuting authority a copy of the offensive material received from the defendant. In the light of the undertakings given in the search order the court considered it right that the originals remain under the control of the court and that it was accordingly only a copy of the offensive material that should pass to the prosecuting authority, accompanied by a statutory declaration from the expert identifying the copy and explaining from what material it was made, that it was a true copy and how, when and where the originals came to the expert's hands.

Re EC (disclosure of material) [1997] Fam 76 applied.

Nicholas Caddick (instructed by the Treasury Solicitor) as the Advocate to the court.

Nathalie Lieven (instructed by the Treasury Solicitor) for the Secretary of State for the Home Department.

Gareth Williams   Barrister.

Judgment

[2005] EWHC 238 (Ch)

CHANCERY DIVISION

23 FEBRUARY 2005

MR JUSTICE LINDSAY

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 23rd 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:-

The Note referring to intellectual property cases reads:-

That practice direction reads:-

6. Section 72 provides as follows:-

7. Unfortunately the practice direction fails to recognise that an intellectual property case Search Order might nonetheless incriminate in ways uncovered by section 72.

8. The Search Order, just over 10 pages long, included the following:-

9. The "Listed Items" were specified in a Schedule; they consisted exclusively of items which either belonged to O Ltd or concerned its business.

10. The Supervising Solicitor gave undertakings which included the following:-

11. The Expert's undertakings included:-

Then there was the oddly-framed undertaking:-

12. The search, which was at the Defendant's house, took several hours. At the very beginning, at about 9.30 a.m., the Supervising Solicitor said to the Defendant that he would explain the order to him clearly before the Search itself began and in as everyday language as was possible:-

The Defendant was told, before anyone had entered the house, that he had a right to seek legal advice and could apply to vary or discharge the order. The Supervising Solicitor was then let into the house and he explained the order to the Defendant as he had said he would. He reiterated the Defendant's entitlement to seek legal advice and variation or discharge of the order and continued:-

There was no reference to self-incrimination; that reference to privilege was exclusively to legal professional privilege.

13. The Supervising Solicitor asked the Defendant if he had any questions but the Defendant had none and indicated that he had understood the order and what he had been told. The Defendant then read the papers that had been served on him and at about 10.10 a.m. said he wanted to seek legal advice. He did so. He spoke on the telephone to a Solicitor. The Solicitor was not going to be free until the afternoon but the Defendant wanted the search completed that day and did not want, he said, to delay matters. At about 10.50 the Supervising Solicitor advised the Defendant to review the affidavits served on him in more detail and at 11.05 a.m. the Defendant indicated he was content that the search should begin, as it then did. Amongst others, the Expert then entered the Defendant's house. Questions relating to computer software which had been authorised to be put to the Defendant by the Order were then answered orally by the Defendant.

14. There were several computers in the house; the Defendant had one, his wife had one, as had his son and daughter. There were 58 second-hand computers in the garage. By 11.45 a.m. the Expert had formed the view that the necessary imaging and the subsequent deletion of material not relating to the Claimant's cause of action could take a significant time given the capacity of the computers that were required to be searched. The Defendant's own computer had, he said, a capacity of 40-50 gigabytes. The Expert suggested removing the computers to the Expert's firm's premises but the Defendant opposed that as he needed at least one computer, he said, for his own business purposes. However, the Defendant was content to let the Expert prepare an image of his PCs and even assisted in the process. Imaging started at about 1.40 p.m.. An Assistant Expert was, with the Defendant's agreement, also brought in to speed up the task.

15. At about 2.0 p.m. the Supervising Solicitor again spoke to the Defendant about his obtaining legal advice; he said he thought it would be advisable for the Defendant to obtain his own legal advice and, said the Supervising Solicitor, it would assist if the Solicitor to whom the Defendant had spoken would attend at the premises.

16. The Defendant had, by about 2.47 p.m., indicated that his computer might contain some items covered by the Search Order. There was a discussion about how such items were to be handled. The Supervising Solicitor explains:-

At about 2.50 p.m. the Solicitor whom the Defendant had contacted telephoned and spoke to the Defendant in private. After the call the Defendant confirmed that he was happy for the search to continue and that his Solicitor would not be attending.

17. Shortly after 3.0 p.m. the Expert said that the necessary imaging and subsequent deletion would take until after 6.0 p.m.. The Defendant said he did not want his computers to be taken away and wanted the search to be completed that day even if everyone had to work through until dawn the next day. He was adamant that no matter how long it took he wanted the search completed that day. As the search had by that time uncovered material relative to the Claimant's cause of action the Claimant's Solicitor invited the Defendant to reconsider the oral answers that he had earlier given. Again the Defendant sought legal advice over the telephone from his Solicitor and responded, after he had taken that advice, that he did not wish to amend his previous answers. He reiterated that he wanted the search completed that day. During the search a large number of floppy disks and CDs had been located and the Defendant agreed that these could be examined using a laptop. That task began. By 6.25 p.m. the Expert indicated that the imaging of the computers had been completed but also that subsequent deletion of material not concerned with the Claimant's case would take many hours. The Defendant did not wish the computers to be taken from his premises. Yet more floppy disks and CDs were found. The Defendant agreed that these items could be listed with generic descriptions. As the search had proceeded the Defendant had on occasions referred to the Supervising Solicitor about items which he thought might be commercially sensitive and had given them to the Supervising Solicitor, who reviewed them to ensure that no legally professionally privileged document was included. None was.

18. Of the 58 computers found in the Defendant's garage, 3 were taken as a sample and removed from the premises. Hand-written lists of all the materials found were drawn up. The Supervising Solicitor explained to the Defendant that the Expert's work was intended to be complete within two working days unless the Court extended the time period or the Defendant agreed in writing to its extension. The Expert indicated that a two-day period would not be feasible. Hence an order of priority for the examination of material was agreed. The search ended at about 11.00 p.m.. The Supervising Solicitor asked the Defendant whether he had any comments or complaints regarding the manner in which the order had been executed and the Defendant confirmed that he had no complaints. The Expert left bearing image copies of 4 hard disks housed in the main computer used by the Defendant and took also, amongst other items, a bag containing CD-ROMs and floppy disks and another bag containing floppy disks and DATs, all found at the Defendant's house.

19. Two days later the Expert began looking through some of the floppy disks and CD-ROMs which had been removed from the Defendant's premises. They had not been examined prior to their removal and the Expert's objective was to sift out any material not relating to the Claimant's cause of action. The Expert says:-

20. The next day the Expert called in a colleague to examine the CD-ROMs and explained the Expert's concern over the nature of one of the video clips that had been found. Both the Expert and the colleague had had wide experience of investigating computers in relation to illegal images. The colleague very quickly identified in excess of 200 indecent images of children in a folder named "kpics". Further such images were found on another CD. The Expert and another colleague began a search of the 4 disks from the Defendant's computer. Indecent images of children were found on the first two disks which were examined. Because of expertise gained by the Expert when acting in other matters the Expert was aware of a categorisation of 1-5 used by the Sentencing Advisory Board, a categorisation in which 5 was the most offensive material. It was the Expert's view that the images seen fell within those categories.

21. The Expert explained to the Claimant's Solicitors that evidence of criminal activity had been found on the search of material from the main computer and from some of the CD-ROMs and that there was concern that the Expert would be committing an offence under the Protection of Children Act 1978 if, complying with the Court order, these were to be returned to the Defendant. The questionable material was sealed in evidence bags and placed in blocked storage with restricted access. The Expert's firm was concerned in three ways; to possess the material could be a crime but if the material was returned to the Defendant then might not the firm be guilty of distribution under section 2 of the Protection of Children Act 1978 (the provisions of which I shall come on to)? If, alternatively, the firm was to delete the material, then might it not be guilty of an offence of destroying evidence of a crime? A letter explaining such concerns was written to a Judge of this Division.

22. Because of the unusual developments in the matter the initial return date was put back. When it did occur, Z appeared or was represented. He indicated or it was indicated on his behalf for the first time that he wished to assert the privilege against self-incrimination. The Learned Judge indicated that he intended to write to the Attorney-General requesting the appointment of an Advocate to the Court to assist the Court in the determination of the questions which had arisen. In the meantime, within a month of the search order, the Defendant had agreed the terms of an injunction to run until judgment or further order and costs had been reserved. Later a Summary Judgment was given against Z. The pornographic material that has been found is completely irrelevant to the Claimant's causes of action. Drawing on their experience when acting in other matters, the Expert's firm is of the view that the paedophile material is, on the scale of 1-5, at level 4. The Expert wishes to disclose it to the Police.

23. At the hearing before me the Claimant, although represented very briefly in 2004, took no active part and then withdrew from the hearing. The Defendant took no part at all. I was then told that he had moved his address, that his family have moved to a quite different part of the country than where the search took place and that he may even have left the country. Later indications are that he has left the jurisdiction, indeed has left the United Kingdom, but that he is still in the European Community.

24. No one had foreseen or had any reason to foresee that Z held offensive material of the kind that he did or that in any way (outside section 72) he may have committed any crimes that would have been relevant to the search. The Supervising Solicitor who had explained the Search Order to the Defendant had explained legal professional privilege to him but had no reason to, and did not, touch upon self-incrimination. To the extent that the Claimant and the Supervising Solicitor had self-incrimination in mind, they would have had in mind only such privilege as would have been denied to the Defendant by section 72 of the Supreme Court Act 1981 supra which, broadly speaking, as will have been seen, withdraws the privilege against self-incrimination as to, but only as to, certain claims in intellectual property cases. Nothing had suggested to the Claimant or the Supervising Solicitor even during the course of the search that any material relating to any crime falling outside section 72 would be likely to be encountered in the course of the search. The explanation of privilege given to the Defendant was thus, as I have mentioned, exclusively on the subject of legal professional privilege. Nothing had been said (as I have verified) about self-incrimination at all, either by the Supervising Solicitor or, in his hearing, by the Claimant's Solicitors or the Defendant. At no stage had the Defendant told the Supervising Solicitor that he had any concerns with regard to the privilege against self-incrimination or that he was seeking to exercise or was willing to waive any rights he might have in that regard. It is not known whether the Defendant's own Solicitor advised him on the subject of self-incrimination but there is no reason to suppose that he was asked to or did. Indeed, if he had advised the Defendant on the subject one could expect the Defendant to have raised it with the Supervising Solicitor, which he did not. With this as the factual background I now turn to the law.

The criminal legislation

25. Under section 1 of the Protection of Children Act 1978 it is an offence for a person to have in his possession indecent photographs of children with a view to their being distributed or shown by himself or others - section 1 (1) (c) - or to distribute or show such photographs - section (1) (b). Possession of itself is not an offence under this Act. It is a defence if the defendant himself has not seen the photographs and did not know nor have any cause to suspect them to be indecent - section 1 (4) (b). For this purpose children are persons under 16. Where there is a reasonable ground for suspecting that an indecent photograph of a child is on premises a Justice of the Peace may issue a warrant authorising any constable to enter the premises, if need be by force, to seize the indecent material - section 4. Offences under the Act are punishable either on conviction on indictment (for a term of imprisonment of not more than 10 years or a fine or both) or on summary conviction (up to six months in prison and a fine or both) - section 6. Photographs are defined to include data stored on a computer disk or by other electronic means - section 7 (4).

26. Under section 160 (1) of the Criminal Justice Act 1988 it is an offence for a person to have any indecent photograph of a child in his possession. Under this Act possession alone does suffice. The maximum term of imprisonment is here 5 years but there may be a fine in addition - section 160 (2A). It is, again, a defence if the person charged has not seen the photograph and did not know or have cause to suspect it to be indecent - section 160 (2) (b). The definition of photographs in the 1978 Act is used for the purposes of the 1988 Act.

27. Whilst the facts I have outlined amount, as it seems to me, to a very compelling prima facie case that the Defendant is guilty of an offence, at least under the 1988 Act and possibly under both Acts, it is far from clear that he could have no defence. If he had, for example, acquired his computer or the other material second-hand it could be that the paedophile images were someone else's collection of which he had no knowledge. That might be thought a little unlikely but it is to be remembered that the 58 computers in his garage had been acquired second-hand. Another more technical question may arise; insofar (if at all) as it was within his computer rather than in CD form, it may be that the Defendant had deleted the offending material from his own computer. It might not follow from the fact that the material was recoverable by the Expert, using, perhaps, better equipment and superior skills, that the material had been still available to the Defendant, at all events on the equipment which he then had. Difficult questions could arise as to whether one can be in possession of that to which one has no access. However in connection, at the very least, with the CDs uplifted from his home, for the purposes of this judgment I shall assume the Defendant to be very vulnerable to enquiries were they to be made by the Police or by some Prosecuting Authority.

Statutory provisions as to search orders

28. The High Court has jurisdiction to grant an injunction when it appears to the Court to be just and convenient to do so - Supreme Court Act 1981, section 37 (1). Orders may be made for the preservation of evidence - Civil Procedure Act 1997, section 7 and see also CPR 25.1 (1) (a) and 1 (h) - in respect of which the privilege against self-incrimination is expressly preserved - section 7 (7). Indeed, the privilege is generally preserved under section 14 of the Civil Evidence Act 1968 in cases where the refusal is to answer questions or to produce any document or thing which "would tend to expose that person to proceedings for an offence or for the recovery of a penalty" under UK law (my emphasis). Specific inroads into the privilege have been statutorily created, for example, under section 72 of the 1981 Act supra, in the Theft Act and, as I shall later refer to, the Children Act but in each of those provisions the withdrawal of the privilege is carefully limited to the areas to which the provision is addressed. There is no reason to suppose that the privilege has been abrogated or diminished in relation to proceedings as to paedophile pornography.

Search Orders; Comments and Practices

29. Although I have set out several passages from the Search Order made in this case and have referred to the current forms for such orders it would not be right to discuss the privilege against self-incrimination in the context of such orders without mention of some of the doubts, caveats and even distaste which such orders have from time to time engendered. Such judicial reactions to the Orders could become relevant if some balancing exercise falls to be conducted between, say, the intrusiveness of the Orders and a public interest in the detection of crime. I shall mention, too, their rather haphazard development, as that may be relevant to consideration of Article 8.

30. The orders, for a time called "Anton Piller" Orders, were first made in 1974. They were first considered by the Court of Appeal in Anton Piller KG -v- Manufacturing Processes Ltd [1976] 1 All E.R. 779 where, at 782-783 Lord Denning, speaking at a time before section 72 was enacted, said:-

31. The Court then sanctioned the use of Search Orders where essential preconditions applied. Of the liberty to a respondent, upon his learning of the ex parte order, to move to set it aside, Scott J in Columbia Pictures Industry Inc and Others -v- Robinson and Others [1986] 3All E.R. 338 at p. 367 said:-

32. Scott J explained at p. 368 the peril in which a respondent wishing to set aside an ex parte Search Order finds himself. At p.369a he spoke of the traumatic effect and the sense of outrage which "an invasion of the home territory in the execution of an Anton Piller order" was likely to cause. At p.371e he added:-

And a little later (p. 371h):-

33. In 1989 Hoffmann J in Lock International plc -v- Beswick and Others [1989] 1 WLR 1268 at 1281 said, á propos Search Orders :-

34. For all the cautious and sparing use of such orders which such comments should have led to, their use, especially in the intellectual property context, burgeoned but the subject of privilege (self-incrimination or legal professional) was by no means always in mind as fit to be mentioned in the orders. Privilege is not, for example, mentioned in the 1986 edition of Atkin's Court Forms Form 21, the 1990 edition Volume 12 Form 4, the 1991 edition Volume 22 Form 12 (although by then there was comment on privilege in the text) or the 1996 edition Volume 22 (1) Form 12. The better practice , though, at least from 1994 at the latest when IBM infra was reported, was, however, specifically to refer to an ability to claim privilege.

35. By 1992 the practice of having a Supervising Solicitor, already, even then, used in the better considered cases, became virtually universal following the observations of Sir Donald Nicholls V-C in Universal Thermosensors Ltd -v- Hibben [1992]1 WLR 840 at 861. Perhaps because of the added protection that the presence of a Supervising Solicitor conferred, the earlier recommended approach - namely that a Search Order should not be made at all where its making might in practice preclude the defendant from raising the privilege before the order executed - was to some extent weakened in the face of the attractions to a claimant and the frequent justice of the making of Search Orders - compare Tate Access Floors Inc and Another -v- Boswell and Others [1991] Ch 512 at 527-530, per Sir Nicholas Browne-Wilkinson V-C. There he had held:-

36. More recently the practice, encouraged, no doubt, by the present CPR Forms to which I have referred, is to make the order expressly referring, other than in section 72 cases, to the subject of self-incrimination but leaving it entirely to the defendant to claim the privilege, the burden, as it always has been - see e.g. Tate Access supra 531e-f - being on the defendant to show that he is being asked to incriminate himself. No doubt, where, at the outset, it can be seen that a truly unavoidable consequence of the execution of a Search Order would be to override the unremoved privilege, it would still be right for the Court to refuse to make the order at all but until this case and since the enactment of section 72 it was thought that:-

- see Tate Access supra at p. 527 h.

37. The novelty of this case is that it illustrates the hitherto unforeseen; even in a section 72 intellectual property context, the risk of self-incrimination can arise and has arisen, without conspiracy being raised. Here the possible crime emerging from the Search Order material has been as to pornography but it could equally have been, say, as to tax or Customs and Excise offences or fraud. The novelty and seriousness of the facts of this case should not lead one to forget the very intrusive nature of Search Orders when executed at a home and the powerful comments which I have cited on the subject, an intrusiveness which, if anything, should, in my judgment, incline me to preserving rather than overriding the privilege if that is a course open to me.

Article 8

38. This was not dealt with at all in the 2004 hearing but I invited Counsel to consider it at this one. The Article provides, under the heading "Right to respect for private and family life" as follows:-

39. I did not, of course, have in mind any possibility that respect for private life and home meant that a home laden with paedophile pornography was inviolable. Nor, given the reference to the prevention of crime, the protection of morals and the protection of the rights and freedom of others (the children photographed and recorded), did I see the case as falling outside the permitted derogations. Rather my concern was that so discretionary or amorphous and so judge-made (as opposed to legislative) in origin are the considerations that regulate Search Orders that the use of material gained by an entry into a home authorised for one declared purpose (the Claimant's action) for a quite different purpose (the investigation or prosecution of crime) might represent an interference not "in accordance with the law" given the meaning of that phrase as indicated in, for example, Khan -v- United Kingdom (2001) 31 EHRR 45 paragraphs 26-27. However, in Chappell -v- United Kingdom (1989) EHRR 1 the European Court of Human Rights considered Search Orders in some detail and held that, for the purposes of the expression "in accordance with the law" the Court was entitled to have regard not merely to statute law but to unwritten or common law - paragraphs 52-57. The Court did not consider the unusual circumstance before me namely that, whilst the Search Order in question referred to legal professional privilege, it did not refer to the privilege which has transpired to be the important one, namely against self-incrimination. However in Chappell the Court was able to overlook the significant weakness in the Search Order in that case in that it had not contained any undertaking that the Respondent should be informed of his right to obtain legal advice - see paragraph 53 (d). I would expect that, similarly, the Court would be untroubled by the failure of the Order in Z's case to mention the privilege against self-incrimination, especially since it was wholly unforeseeable that it should become relevant. In that circumstance I would not expect Article 8 to assist Z.

Human Rights: Article 6

40. My reasoning in the 2004 Judgment was as follows. Article 6 (1) of Schedule 1 Part I of the Human Rights Act 1998, headed "Right to a fair trial", begins by providing that in the determination, inter alia, of "... any criminal charge against him everyone is entitled to a fair .... hearing." There is no express reference there to any privilege against self-incrimination nor in Article 6 (3), which speaks of rights to be enjoyed by those charged with a criminal offence. The references twice over to "charges" suggests that the rights are enjoyed only once a charge is laid. There have, moreover, been cases in the ECHR which again suggest that the Article is concerned with occasions when a charge has already been laid. Thus in Serves -v- France (1999) 28 EHRR 265 what was in issue was compulsion to procure a man's answer to questions put to him as a witness in a criminal prosecution. The compulsion was held to be in breach of Article 6 because he was, in a related matter, himself the subject of a "charge" for the purposes of Article 6 (1). Whilst the Court - paragraph 46 of the judgment - reiterated that the right of any "person charged" not to incriminate himself was generally recognised as an international standard which lay at the heart of the notion of fair procedure under Article 6, that right, it held, was a right accorded, it would seem, only to a "person charged". The discussion in Serves as to what amounted to a "charge" and as to whether the man had or had not himself already been charged would have been quite unnecessary had the privilege been applicable under Article 6 even against compulsory disclosure, for example, during an investigatory process, before any charge had been laid.

41. So also in IJL, GMR and AKP -v- The United Kingdom (2001) 33 EHRR 11 the Court looked at the use of compulsory powers to obtain information (my emphasis) "from the standpoint of the use made of that information at the trial" - p. 251. By then, of course, charges had been made. The argument that even at the earlier interview stage the Inspectors appointed by the Department of Trade and Industry in the Guinness affair were determining a criminal charge so as to confer on those questioned the rights laid down by Article 6 was firmly rejected; p. 251. The Court in its paragraph 101 conspicuously avoided the question of whether the Article 6 guarantees should have attached even at the earlier stage before charges were laid. It was also emphasised in the earlier case Saunders -v- UK [1997] 23 EHRR 313 that it was use of material at trial that was in issue as a Human Right rather than its use at an investigatory stage - paragraph 67.

42. I have no reason to believe that the Police are currently even considering any possibility of charges against, or of embarking on any investigation of the conduct of, the Defendant. Given the particularly clandestine nature of the potential offences, it is unlikely that anyone will have any such knowledge as would be likely to lead him or her, unprompted, to go to the Police with complaints about the Defendant. Unless the Expert takes the offensive material to the Police the overwhelming likelihood is that nothing further will be done against him. There is, for the purposes of Article 6, nothing akin to a criminal charge yet in being.

43. Given my reasoning on other issues in the 2004 judgment, I then said nothing more than, firstly, that I had real doubts as to whether Z could then rely on Article 6 and, secondly, that because of that other reasoning I had no need to come to a firm conclusion. Now I do need to come to such a conclusion; I now move from real doubts as to whether Article 6 could yet assist Z to a firm conclusion that it does not. Both Miss Lieven and Mr Caddick accept that the reasoning in the 2004 Judgment leads to Article 6 being of no assistance to Z and I have now learned that the conclusion I had then laboured towards could have been more readily reached by citation from Attorney-General's Reference (No. 7 of 2000) [2001] 1 WLR 1879 paragraphs 58-62; Reg -v- Herts C.C., Ex parte Green Industries Ltd [2000] 2 A.C. 412 at 423 f and Reg -v- Kearns [2002] 1 WLR 2815 CA at 2829 paragraphs 51, 52 and 53. I shall thus proceed on the basis that as yet Article 6 confers no protection on Z and nor does Article 17 (which was only very briefly touched on by Counsel). However, that is not to say that there is no protection available to him under wholly domestic provisions, a question to which I now turn.

The privilege against self-incrimination under Common Law

44. I do not read the English authorities as describing a privilege which arises only once a criminal charge has been made. Thus in Triplex Safety Glass Co. -v- Lancegay Safety Glass (1934) Ltd [1939] 2 K.B. 395 at 403 Du Parcq L.J., reading the judgment of the Court, said at p. 403:-