Posted on 05/29/2007 2:44:00 AM PDT by bruinbirdman
Senior judges have dealt a blow to the ancient legal principle that a person is protected from incriminating himself.
The Court of Appeal has decided that a man must hand over potentially incriminating computer evidence.
In a far-reaching decision, the court ruled that the privilege, a basic tenet of English law, extends only to what people say and does not apply to incriminating documents, data or other material.
The ruling came in a case that involved a computer expert – known only as P – who refused to hand over material on his computer that may be relevant to a dispute with his former employers. He said that the material included potentially illegal pornographic images.
The man, who worked in the telecommunications industry in the Manchester area, was sued by his former employers because, they alleged, he removed confidential material from them.
The first the man knew of the action against him by his company was when a search team, including solicitors acting for his former company, arrived at his door with a High Court search warrant, wanting to copy computer hard drives.
He took immediate legal advice and then told the search party that they could look for material relevant to the search but that he claimed privilege from disclosing other material on his computer that was potentially incriminating.
It was agreed that the computer should be handed to an independent IT expert, who, in the course of examining it, came across the possibly illegal material.
The issue of whether this should be handed over to the police or be protected by privilege against self-incrimination went to the High Court where a judge ruled that the privilege did not hold good because he had to take into account European law, in which the interpretation is different from a series of House of Lords rulings.
Last week the Court of Appeal overruled the reasons for that decision but came to the same conclusion, saying that the privilege was confined to oral evidence and could not be extended to protect documents, data or other materials.
P’s solicitor, Alex Megaw, a partner in the Manchester law firm Pannone LLP, said that they would be appealing to the House of Lords.
“The result is that in the course of a search, any material – even if irrelevant to the search in question – is liable to be disclosed, even if highly prejudicial, if that is necessary to comply with a search order. The fact a criminal prosecution might follow for unrelated matters is of no consequence.”
In 2000 the European Court of Human Rights ruled that the rights of the Guinness Four had been breached because their trial had relied on evidence that the men were compelled to give in interviews with the Department of Trade and Industry. The prosecution had obliged the men to incriminate themselves, the European judges said.
Search warrants? We don’t need no stinking search warrents!
Actually they still do but this makes them open ended, no need to describe those items to be searched for.
What if he used voice recognition software?
Seems odd to me.
I realise one cannot be expected to incriminate ones self verbally, but it has always been expected that one must hand over physical evidence, even if it incrminates one.
If a drug dealer is arrested he cannot refuse to hand over the contents of his pockets on the basis that the crack therein may self-incriminate him.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Wow, the implications of this are hugh! (And I’m series about that!)
Unfortunately, I see America going this way eventually.
‘Cases like this make me proud to be an American. We took the best of English Common Law, and put it down in writing so nobody could misinterpret it.’
So did we:
Magna Carta article #39
‘No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.’
Magna Carta article #63
‘IT IS ACCORDINGLY OUR WISH AND COMMAND that the English Church shall be free, and that men in our kingdom shall have and keep all these liberties, rights, and concessions, well and peaceably in their fulness and entirety for them and their heirs, of us and our heirs, in all things and all places for ever.’
Silly case, because it in no way touches on the right to not self incriminate.
They had a search warrant, properly executed, in the course of which other possibly illegal materials were found. Of course they should be turned over.
That’s like saying if the cops execute a search warrant for dope, that they must ignore a body in the bathtub because it’s not on the warrant.
Citizen’s have a right not to incriminate themselves, but they don’t have to be protected from their own obvious stupidity.
Note to dumbodies: If your going to steal info from your employer, don’t store it on the same hard drive as your porn collection, especially if you’re into kiddy diddling.
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