Otl v P

The privilege against self-incrimination protects testimonial material, including compelled answers and documents created under compulsion. It does not extend to pre-existing, self-standing evidence which was not created by the person claiming the privilege. A respondent may preserve the privilege by claiming it before a search, provided the material remains confidential in the custody of the court or its officers. In an exceptional case, the court may modify the privilege to balance fair-trial rights against the public interest in protecting people from serious crime, and may release the material from confidentiality so that it can be passed to the police.

The proceedings arose from a search order made in an action for breach of confidence and copyright infringement. During the court-supervised imaging of computers, an independent computer expert discovered highly objectionable child images. The defendant had claimed privilege against self-incrimination before the search began and maintained that he was unaware of the material.

The issues were whether the defendant had lost the privilege by permitting the search and allowing the computers to be delivered to the court-appointed expert, whether the privilege extended to pre-existing self-standing evidence, and whether the court could direct disclosure to the police.

1. Privilege preserved. The defendant had effectively claimed privilege before the search began. Delivery of the computers and material to the supervising solicitor and independent expert did not waive it because they held the material as officers or agents of the court, subject to confidentiality undertakings. The claim could cover all material produced by the search and did not need to identify the incriminating material precisely.
2. Scope of the privilege. The judge adopted the approach in Attorney General’s Reference (No 7 of 2000), holding that domestic privilege against self-incrimination should be confined to testimonial evidence. It did not protect pre-existing, independent evidence merely because compulsion brought that evidence to the court’s attention.
3. Convention-compliant modification. Although earlier authorities treated the domestic privilege more broadly, the Human Rights Act 1998 required the court to balance the defendant’s rights against the public interest and positive Convention obligations to protect people from serious criminal conduct. This was an exceptional case in which the privilege could be modified to permit transfer of the material to the police. The defendant could seek exclusion at any criminal trial under section 78 of the Police and Criminal Evidence Act 1984.
4. Final order. The public interest also justified release from the implied undertaking governing material obtained in civil proceedings. The court ordered the computer and associated electronic materials to be passed to the appropriate police authority, granted permission to appeal, and stayed the order pending an urgent appeal.