C Plc v P & Anor

The privilege against self-incrimination does not prevent disclosure to the police of real, pre-existing evidence discovered while a lawful civil search order is being executed. Such material exists independently of the defendant’s will and is distinct from compelled testimony or a compelled testimonial act of production.

Relevant independent evidence remains admissible even if improperly obtained, subject to the criminal court’s statutory discretion to exclude evidence where admission would adversely affect the fairness of proceedings. Where criminal material is lawfully discovered by a supervising solicitor or independent expert, the civil court may ordinarily authorise its transmission to the police.

An intellectual property search order required P to permit computers to be imaged. P asserted the privilege against self-incrimination before the search. While imaging a computer, an independent expert discovered unlawful images of children. The material remained under the control of persons bound by undertakings to the court.

Evans-Lombe J ordered that the material be handed to the police but stayed the order pending appeal: [2006] EWHC 1226 (Ch). P appealed, contending that the privilege prevented disclosure or that the court should withhold permission as a matter of discretion. The central issue was whether the privilege attached to pre-existing criminal material discovered through execution of a lawful search order.

1. Appeal dismissed. The offending material could be disclosed to the police. Longmore LJ delivered the leading judgment, with which Sir Martin Nourse agreed. Lawrence Collins LJ agreed in the result on a narrower basis.

2. The production and imaging of the computer were required by an order protected from a claim of self-incrimination by section 72 of the Supreme Court Act 1981. The material subsequently discovered was real and independent evidence. It existed independently of the order and was not compelled testimony from P. The privilege therefore did not attach to the material itself and did not prevent its disclosure.

3. The privilege protects a person from being compelled to answer incriminating questions or undertake a testimonial act of production. It does not protect independent matters which come to light during the lawful execution of a court order. The civil and criminal law did not confer materially different privileges in this respect.

4. English law admits relevant evidence regardless of how it was obtained, subject in criminal proceedings to the court’s discretion under section 78 of the Police and Criminal Evidence Act 1984. The distinction between compelled testimony and material existing independently of the suspect’s will was consistent with the domestic and Convention authorities.

5. The judge properly permitted disclosure as a matter of discretion. P’s solicitor knew of the possible claim and invoked it at the earliest opportunity, so the wording of the search order created no operative trap. Practical considerations also strongly favoured transmission to the police: return, destruction or indefinite retention of criminal material would each be seriously problematic.

6. Longmore LJ added that, had binding House of Lords authority established the wider privilege assumed below, the Convention and the limited precedent exception discussed in Kay could not properly have been used to depart from it. Lawrence Collins LJ likewise considered that Convention law could not abrogate greater rights otherwise available under domestic law.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The order authorising transmission of the offending material to the police was upheld: [2007] EWCA Civ 493.

2. High Court (Chancery Division): Evans-Lombe J ordered that the material be handed to the police, but stayed the order pending appeal: [2006] EWHC 1226 (Ch).