O Ltd v Z

The privilege against self-incrimination may be claimed in civil proceedings before any criminal charge or investigation exists. It protects against disclosure which may expose a person to prosecution or set investigative processes in train. In a search conducted under compulsion, however, the privilege is lost if the person hands over incriminating material without claiming it. The privilege is distinct from the implied undertaking restricting the use of material obtained in civil proceedings. In an appropriate case, particularly involving serious suspected offences against children, the court may release the relevant persons from that undertaking and permit disclosure to the police, subject to the court retaining the originals.

An employer obtained an ex parte search order against a former employee for alleged misuse of computer software and business material. During the search, computers and removable media were handed to the search expert. Examination later revealed serious indecent images of children, wholly unrelated to the intellectual-property claim. The defendant had been told about legal professional privilege and his right to seek legal advice, but had not been told about privilege against self-incrimination. He first raised that privilege only after the material had been discovered and retained.

The court had to decide whether the privilege applied, whether it had been lost by the defendant’s conduct, and whether the implied undertaking governing material obtained under the search order should be released so that the material could be disclosed to the police.

1. Privilege against self-incrimination. The privilege is available in civil proceedings and arises before criminal proceedings or a formal charge. It extends not only to material directly admissible against the person, but also to material which may assist a prosecution or set in train inquiries likely to lead to incriminating evidence. The statutory exceptions, including Supreme Court Act 1981, section 72, are carefully limited and did not remove the privilege in relation to unrelated criminal conduct.
2. Effect of the search order. Producing documents, computer disks and tapes under the compulsory terms of the search order was equivalent, for present purposes, to answering compelled questions. The defendant could therefore have claimed the privilege. The fact that the search order was made in intellectual-property proceedings did not itself remove protection against self-incrimination concerning unrelated offences.
3. Loss of the privilege. The authorities established that the privilege must be claimed before the incriminating material is supplied. Knowledge of the privilege, or an explanation of it, is not ordinarily required before failure to claim it results in waiver. Delivery to the supervising solicitor did not preserve the privilege where no claim had been made; delivery to the expert was at least as clearly capable of having that effect. The defendant handed over the material without claiming the privilege and his later claim had no retrospective effect.
4. Implied undertaking. Material obtained under a search order remains subject to the undertaking that it will not be used for a collateral purpose unless the court releases or modifies that undertaking in special circumstances and without injustice. The court applied the factors identified in Re C (a minor) (Care Proceedings: Disclosure), including the welfare of children, the administration of justice, the public interest in prosecuting serious crime, the gravity and relevance of the suspected offence, and fairness to the person affected.
5. Disposition. The seriousness of the suspected offences, the material’s direct relevance to a possible investigation, the defendant’s access to private legal advice, and the absence of abuse by the search party justified release from the implied undertaking. The expert was directed to provide the relevant prosecuting authority with a copy of the offensive material and an explanatory statutory declaration. The originals were to remain in the custody of the court, with liberty to apply concerning costs and further directions.

First-instance judgment. No earlier appellate decision is stated in the judgment.