A small-business client calls you one morning at 10am and says: 'There are solicitors here with a search order. They want to take away documents, and they have engineers waiting to image the hard disks on my computers. Do I comply?'

You, the solicitor: 'It is always best to comply with a court order.'

Client: 'A few weeks ago I installed a bunch of second-hand computers sourced by my sole assistant, whom I have just sacked for looking at hard-core pornography. What if they find indecent pictures of children? I have done nothing wrong, but if the police find something like that on my hard disk they will put me through the wringer, and possibly give my name to the local press. That would destroy my business and my marriage.'

Now what do you say? The material seized under a civil search order is privileged in certain respects. Leaving aside the danger that something seriously suspicious will leak out to the police in spite of privilege, the issue is how far the client is protected by privilege. Does privilege against self-incrimination protect the client form the danger that someone in possession of suspicious material, probably the supervising solicitor, will pass material to the police?

This question came up recently in C plc v P [2006] EWHC 1226 (Ch) As luck would have it, the computer expert involved was a retired policeman who had specialised in prosecutions of people for having indecent images on their computers, and that is what he found in this case. The computer owner denied knowing anything about the images, but seems to have had personal reasons (understandable, one might think) for not even wanting to be investigated on this kind of suspicion.

Bear in mind that when the applicant's solicitors arrive to serve a search order they normally explain that material subject to legal professional privilege (or where relevant, litigation privilege) will remain privileged. Current practice has not been to explain privilege against self-incrimination for a criminal matter (which may or may not be related to the subject-matter of the search).

These things happen quickly. In the present case the respondent seems to have had a very well informed solicitor, who reached the 'scene' before the search started. I quote from the judgment:
On the 23rd February 2005 Mr Justice Lindsay gave judgment in the case of O Ltd v Z [2005] EWHC 238. The facts of that case mirror almost precisely the facts of the present case save in the following important respects:-
i) Before the search commenced P's solicitors informed the Supervising Solicitor and the claimant's solicitor that P was relying on his PSI without reference to any particular document or electronic material which might be disclosed as a result of the search at the same time giving them a copy of the judgment in the O Ltd case. He also informed them of P's intention to apply to the court for the determination of the extent to which he was entitled to exert his PSI and, in consequence, to vary the search order.

The point here is that in O Ltd. the claim to privilege failed because the respondent had not expressly invoked his privilege against self incrimination.

'Rule One' then, which the solicitor followed in the present case, is to think about claiming privilege against self incrimination. Take instructions on whether to do so. If it is not feasible to explain the issue to the client and to take adequate instructions, it is submitted the safest course is to make the claim anyway, with such instructions as you can obtain (on the basis that it can be waived later). Of course make sure you have an attendance note, and if it seems appropriate, encourage both applicant and supervising solicitor to note the claim too. But also be aware that the law is in flux, and as discussed below, there is currently a strong chance that invoking the privilege will not protect the client. Before coming to that I mention some other points worth remembering.

There are important points which emerge from O Ltd, and which are not, or not fully, covered in the C plc judgement which was my starting point. First, the fact that it never crossed the mind of the respondent to claim privilege against self-incrimination does not stop him losing that privilege. This is related to the fact that the right to receive a caution is not absolute. If the respondent or his solicitor wakes up to the problem after the material has been handed over, it is too late to revive the lost right not to incriminate oneself. In O Ltd. Lindsay J goes into this area in detail.

What about the undertaking not to use the seized material in other proceedings? In O Ltd. the argument was put that just because privilege against self-incrimination was lost, it did not follow that suspicious material could be handed to the police. The applicants and supervising solicitors were bound by undertakings to use material only for the case in hand. However, the court decided that this undertaking applies only to use of material in other civil proceedings. The is a contrary authority:
In the 2004 Judgment I was troubled by a passage from the judgment of Sir Nicholas Browne-Wilkinson V-C in EMI Records v Spillane [1986] 1 WLR 967 where, dealing with a case in which fiscal crimes were the issue, he said, at p. 977:-
"So long as documents are held solely as the result of discovery, particularly discovery under compulsion under a [Search Order], in my judgment, it would be quite wrong to authorise their use in criminal proceedings brought under fiscal laws and having no connection with the original cause of action."

This is distinguished (in my respectful submission, not very adequately): in any event it leaves open an argument, with an uncertain outcome, that material seized in a search cannot be used to prosecute tax crime.

This leads on to another point: the distinction between the use of the material seized, and passing it to some relevant prosecuting or investigating authority. The point is that the use of the material to authorise a prosecution, or its admission in evidence (probably after an argument on PACE s78) is quite separate from the decision about whether the material can be passed to the police. The fact the respondent may have protection under PACE s.78 neither helps nor hinders him: it is not relevant, according to O Ltd.

Another complex area of case law is whether the right to privilege against self-incrimination applies only to evidence which is given under compulsion. The argument in effect is that self-standing documents which were already in existence are not covered. The answer on the current difficult authorities was said to be that self-standing documents not produced under legal compulsion are not covered. But material handed over under a search order, after claiming privilege, are covered. That is compulsion. The judge found that the authorities protect such material from disclosure under domestic law.

But wait. A human rights argument was put that the rule should be modified to protect the rights of victims against perpetrators of crime. The judge, referring to a House of Lords judgment not then published, and not published at time of writing (17 June 2006), says this:
In the very recent case in the House of Lords of Leeds City Council v Price and Ors as yet unreported but in respect of which the decision was handed down on the 8th March 2006, the respondents to the appeal are recorded in the speech of Lord Bingham at paragraph 32 as placing reliance on three principles which guide the Strasbourg Authorities in their administration of the Convention. The first two are not relevant for the purposes of this judgment. The third principle is described by Lord Bingham as follows:-
"So too is the third principle, that inherent in the whole of the Convention is a search for balance between the rights of the individual and the wider rights of the society to which he belongs, neither enjoying an absolute right to prevail over the other. It is unnecessary to cite authority for propositions so well established and understood. "

In this case the privilege against self-incrimination would, according to the authorities, have protected the respondent from the material being passed to the police. However, the judge, referring to this new House of Lords case, discusses at length how far he can, at first instance, modify the law in order to balance the competing rights of the individual and society. The outcome was that he did modify the law. In this case the Human Rights Act, because it gives protection to society at large, has led the court to increase the protection to victims at the expense of a potential suspect. (You can be sure the no tabloid will report that!)

In the light of this decision, there is a question, what is left of the privilege against self-incrimination in respect of evidence found, or likely to come to light, during the execution of a search order. The answer appears to be that nothing is left. It is always possible, as the judge suggested, to disclose everything which is relevant. and identify certain parts of the material which are wholly private and unconnected with the case. This is unrealistic where engineers are on hand to image hard disks. Selecting files on the disk which you choose to provide copies of, by way of partial compliance with the order, would probably impractical. In any event, as soon as any argument of privilege permitted the respondent to pick and choose what he discloses then the value of the exercises is fatally undermined. The same is true, to a lesser extent, if courts were to impose greatly reduced sanctions on a respondent who refuses to comply only in respect of material which he asserts is self-incriminating. In other words, the logic of the judgment is that the privilege against self incrimination has been abolished in this context.

The court gave permission to appeal and granted a stay of its order pending appeal. The questions in issue are still not clear cut. For the present, in certain cases a solicitor might need to give advice on the basis that, given the way the law stands, a client may wish to consider taking the foreseeable consequences of refusing to comply with a search order, rather than exposing himself to the wider, unforeseen, risks of complying..

Dr John Birchall - Professional English, Legal English, and Common Law Training