Otl v P [2006] EWHC 1226 (Ch) (26 May 2006)

Otl v P [2006] EWHC 1226 (Ch) (26 May 2006)

Where a respondent to a civil search order claims PSI before execution and the incriminating material remains in the custody of court officers or experts bound by confidentiality, the privilege is not lost. However, in light of ECHR jurisprudence and recent Court of Appeal authority, PSI does not extend to pre-existing, independently created evidence not produced under compulsion. The court is not currently able to direct delivery of such material to the police absent higher authority, but the privilege does not bar such a direction in principle.

Citation
[2006] EWHC 1226 (Ch)
Parties
Claimant: OTL; Defendant/respondent: P; Applicant: W; 1st Intervenor: THE SECRETARY OF STATE FOR THE HOME OFFICE; 2nd Intervenor: THE ATTORNEY GENERAL; Advocate to the Court: Nick Caddick
Jurisdiction
England and Wales
Judgment Date
26 May 2006
Procedural Posture
Chancery Division Civil Application / Judgment on Application for Directions Regarding Privilege Against Self Incrimination (psi) and Handling of Evidence Discovered Under Search Order
Outcome
PSI was effectively claimed by P and not lost by delivery to court officers; however, PSI does not extend to pre-existing, independently created evidence. The court does not presently direct delivery of the offending material to the police but holds that the privilege does not prevent such a direction in principle.
Legal Topics
Privilege Against Self Incrimination, Search Orders, Disclosure of Evidence, Article 6 ECHR, Confidentiality, Criminal Offences Discovered in Civil Proceedings
Civil Procedure Evidence Human Rights Privilege Against Self Incrimination Search Orders Disclosure of Evidence Article 6 ECHR Confidentiality +1 more

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Parties

OTL

Claimant

P

Defendant/respondent

W

Applicant

THE SECRETARY OF STATE FOR THE HOME OFFICE

1st Intervenor

THE ATTORNEY GENERAL

2nd Intervenor

Nick Caddick

Advocate to the Court

Procedural Posture

Chancery Division Civil Application / Judgment on Application for Directions Regarding Privilege Against Self Incrimination (psi) and Handling of Evidence Discovered Under Search Order

Legal Issues

  1. 1 Whether the privilege against self-incrimination (PSI) applies to pre-existing, independently created incriminating material discovered under a civil search order
  2. 2 Whether delivery of such material to a court-appointed officer or expert results in loss of PSI
  3. 3 Whether the court should direct that such material be handed to the police

Ratio Decidendi

Where a respondent to a civil search order claims PSI before execution and the incriminating material remains in the custody of court officers or experts bound by confidentiality, the privilege is not lost. However, in light of ECHR jurisprudence and recent Court of Appeal authority, PSI does not extend to pre-existing, independently created evidence not produced under compulsion. The court is not currently able to direct delivery of such material to the police absent higher authority, but the privilege does not bar such a direction in principle.

Court Disposition

PSI was effectively claimed by P and not lost by delivery to court officers; however, PSI does not extend to pre-existing, independently created evidence. The court does not presently direct delivery of the offending material to the police but holds that the privilege does not prevent such a direction in principle.

Orders

  • W to retain the offending material pending further order of the court.