West Law Report


Last Updated: 1:26AM BST 07/06/2007
Court of Appeal (Civil Division)
Pill, Wall and Maurice Kay LJJ
May 17, 2007

May 17, 2007 Conditions precedent – Non-derogating control orders – Prosecutions – Restrictions – Right to liberty and security – Impact of control order on rights under Art. 5 European Convention on Human Rights 1950 – Secretary of state’s continuing duty to review prospects of prosecution – Art. 5 European Convention on Human Rights 1950 – Art. 3 European Convention on Human Rights 1950 – Art. 8 European Convention on Human Rights 1950 – s. 8(2) Prevention of Terrorism Act 2005

The appellant (P) appealed against a decision ([2006] EWHC 1226, [2006] Ch 549) that highly objectionable images of children recovered from his computer following the execution of a search order made in intellectual property proceedings should be disclosed to the police. P had permitted the search of his premises to take place, but asserted that he would rely on his privilege against self-incrimination in respect of any material that the search might disclose. An employee of the company responsible for “imaging” the computer had discovered the offending material and applied to the court for directions. The judge below proceeded on the basis that, by reason of Rank Film Distributors Ltd v Video Information Centre [1982] AC 380, before the Human Rights Act 1998, the privilege against self-incrimination would have applied to permit a defendant in civil proceedings not only to refuse to answer questions or produce documents by way of discovery, but also to refuse to produce any incriminating article found in the course of a search of premises pursuant to a court order.

The judge held that since the 1998 Act and by reason of the decision in Saunders v United Kingdom (19187/91) [1997] BCC 872, the privilege did not apply in criminal proceedings in relation to pre-existing or “independent” evidence. Accordingly, the judge held that, since it was illogical for the privilege to be wider in civil proceedings than in criminal proceedings, the court could modify the common law doctrine as laid down in Rank and could rely on the partial exception to the doctrine of precedent set out in Kay v Lambeth LBC [2006] UKHL 10, [2006] 2 AC 465. The issue for determination was whether P could invoke the privilege to prevent disclosure of the material to the police. P submitted that it was not permissible for the court to use the 1998 Act when no human rights were engaged in order to justify departing from the law laid down by precedent. The Attorney General, intervening, submitted that, whilst the judge had ultimately made the right decision, there was never any difference between the civil law and the criminal law, and the rationale for the privilege had no application to independent evidence.


(i) Whether the restrictions in the control order did not constitute a breach of Art. 5. (ii) Whether the judge had been wrong to find that he had breached his duty to consider and review the prospects of prosecuting E.

HELD (appeal allowed)

(i) The degree of physical restraint on E’s liberty was far from a deprivation of liberty in terms of Art. 5, Guzzardi v Italy (A/39) [1981] 3 EHRR 333, Engel v Netherlands (A/22) (1979-80) 1 EHRR 647 and Trijonis v Lithuania (Admissibility) (2333/02) considered. E lived in his own home with his family, and was able to leave his home for 12 hours a day with no geographical restriction on where he could go. E had ample opportunity to engage in everyday activities and make a wide range of social contacts, Secretary of State for the Home Department v JJ [2006] EWCA Civ 1141, [2006] 3 WLR 866 distinguished. While the state of a controlled person’s health, and possibly other “person-specific” characteristics, might have an impact on the severity of the effect of the restrictions imposed, the judge below was correct in finding that, in the instant case, only very limited weight could be given to that factor. The judge had been right to conclude that the control order was likely to be renewed on expiry of the relevant 12-month period and to consider the restrictions on that basis. The judge had not erred in considering matters relevant to arguments under Art. 3 and Art. 8 in his consideration of Art. 5.

(ii) When properly considered in its statutory context, the duty under s. 8(2) of the 2005 Act to consider and review the possibility of prosecution was not a condition precedent to the making or renewal of a control order. The judge below had been right to find that the secretary of state had breached his duty to keep the possibility of prosecuting E under review. It was incumbent upon him to provide the police with material in his possession which was or might be relevant to any reconsideration of prosecution. The duty extended to a duty to take reasonable steps to ensure that the prosecuting authorities were keeping the prospects of prosecution under review; it did not extend to the secretary of state becoming the prosecuting authority. The secretary of state had breached his continuing duty of review by omitting to provide the police with the Belgian judgments so as to prompt and facilitate a reconsideration, Secretary of State for the Home Department v MB [2006] EWCA Civ 1140, [2006] 3 WLR 839 applied.

(iii) The judge had erred in describing the Belgian judgments as “evidence” giving rise to a realistic possibility of prosecution. He had erred in law in holding that the secretary of state’s breach justified the quashing of the control order, and ought instead to have further analysed the consequences of the breach.

R Tam QC and A O’Connor (instructed by the Treasury Solicitor) for the appellant. K Starmer QC and H Southey (instructed by Birnberg Pierce & Partners) for the respondents. A McCullough (instructed by Special Advocate Support Office) for Special Advocate.

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