The second plaintff had agreed to supply computer systems to a health authority. New owners of the company discovered allegations that the contract had been operated fraudulently. An order had been obtained for production of documents, but the order restricted the use which could be made of the information disclosed. The Court of Appeal held that it was not open to the court to devise protection in substitution for the defendants’ privilege against self-incrimination, and that the plaintiffs’ claim was neither proprietary nor within section 72 of the Supreme Court Act 1981.
Held: The privilege against self incrimination survives only where there is a continuing threat of prosecution. The prohibition on the questioning of suspects without caution or after charge is a prophylactic rule designed to inhibit abuse of power by investigatory authorities and to preserve the fairness of the trial by preventing the eliciting of confessions which may have doubtful probative value.
Lord Templeman discussed the privilege against self-incrimination, saying: ‘the privilege can only be justified on two grounds, first that it discourages the ill-treatment of a suspect and secondly that it discourages the production of dubious confessions. Neither of these considerations applies to the present appeal. It is difficult to see any reason why in civil proceedings the privilege against self-incrimination should be exercisable so as to enable a litigant to refuse relevant and even vital documents which are in his possession or power and which speak for themselves.
I regard the privilege . . exercisable in civil proceedings as an archaic and unjustifiable survival from the past when the court directs the production of relevant documents and requires the defendant to specify his dealings with the plaintiff’s property or money.’
Lord Griffiths: ‘the privilege [against self-incrimination] . . is in need of radical reappraisal. It is however deeply embedded in English law and can only be removed or moderated by Parliament . . [which] has in recent years made many inroads into the privilege in a number of statutes. In civil actions . . the privilege can be claimed to thwart the claims of victims of fraud. I can for myself see no argument in favour of the privilege against producing a document the contents of which may go to show that the holder has committed a criminal offence.’
Lord Lowry also discussed the ambit of section 72(2) saying that it: ‘shows that the relevant information has to be intellectual property in order that section 72 may apply and the appellants submitted that the relevant information here is ‘commercial information’ within the meaning of sub-section (5). In my opinion, the information with which your Lordships are here concerned simply does not fit into the definition in the subsection. Even if it were not already obvious, the concluding words, ‘or other intellectual property’, show that the ‘commercial information’ which the definition contemplates must be information of the same type (ejusdem generis) as the other examples of intellectual property which are listed in sub-section (5). The information with which this case is concerned does not pass that test and this action is not concerned with the infringement of any rights pertaining to intellectual property. On this part of the case I respectfully agree with the observations of Lord Donaldson MR and Neill LJ in the Court of Appeal.’
Judges:
Lord Templeman, Lord Griffiths, Lord Lowry
Citations:
Gazette 09-Sep-1992, [1993] AC 45, [1992] 3 All ER 523, [1992] 3 WLR 344
Statutes:
Jurisdiction:
England and Wales
Citing:
Appeal from – A T and T Istel Ltd and Another v Tully and Others CA 15-Jan-1992
An order that the results of disclosure were not to be used in criminal proceedings was enough to protect the defendant. The privilege against self incrimination could be over-ridden in this way, even if that privilege should be lightly set aside. . .
Cited by:
Cited – Regina v Hertfordshire County Council, ex parte Green Environmental Industries Ltd and Another HL 17-Feb-2000
A notice was given to the holder of a waste disposal licence to require certain information to be provided on pain of prosecution. The provision of such information could also then be evidence against the provider of the commission of a criminal . .
Cited – C Plc and W v P and Secretary of State for the Home Office and the Attorney General ChD 26-May-2006
The claimant sought damages from the first defendant for breach of copyright. An ex parte search order had been executed, with the defendant asserting his privilege against self-incrimination. As computer disks were examined, potentially unlawful . .
Cited – C Plc v P and Attorney General Intervening CA 22-May-2007
The respondent had been subject to a civil search, which revealed the existence of obscene images of children on his computer. He appealed against refusal of an order that the evidence should not be passed to the police as evidence. He said that the . .
Cited – Gray v News Group Newspapers Ltd and Another; Coogan v Same ChD 25-Feb-2011
The claimants said that agents of the defendant had unlawfully accessed their mobile phone systems. The court was now asked whether the agent (M) could rely on the privilege against self incrimination, and otherwise as to the progress of the case. . .
Cited – Phillips v Mulcaire SC 24-May-2012
The claimant worked as personal assistant to a well known public relations company. She alleged that the defendant had intercepted telephone message given by and left for her. The court was asked first as to whether the information amounted to . .
Lists of cited by and citing cases may be incomplete.
Evidence, Human Rights
Updated: 08 April 2022; Ref: scu.77583