The ID Theft Task Force (the Americans always come up with cool names), was set up by “W” Bush in May 2006, and has now up with its first report and is available here .
There are no shock results; recommendations for more arrests and convictions and less loss of data. But, for those interested in the field, worth a read.
Section 76 of PACE deals with challenges to the admissibility of confessions in criminal proceedings, Section 76 (2) PACE directs the court to exclude confession evidence obtained by oppression; in circumstances which were likely to make the confession unreliable. Prosecutors should remember that, whilst the confession itself may be excluded, Section 76(4) allows facts discovered as a result of the confession, or of the way in which defendants speak, write or express themselves, to be adduced where relevant. Source CPS
This is not to be confused with Section 78 of PACE
Section 78 of the Police and Criminal Evidence Act gives the court powers to exlcude evidence from a trial which has been unfairly obtained. This section has resulted in numerous case law. This is not to be confused with Section 76, which deals with confessions obtained through oppression.
This article is an attempt to analyse the principles which the courts use to decide whether or not to exercise the discretion to exclude. It starts by examining the decisions of the appellate courts in order to try to identify the factors which the judges regard as relevant to this discretion. Secondly, it examines the possible policies which might underlie a discretion to exclude. It then attempts to match the practice to the policies, and concludes that ‘fairness as fair play’ is the dominant policy currently being used. The conclusion considers how the changes in the rights of the suspect (in particular the right to remain silent) introduced by the Criminal Justice and Public Order Act 1994 are likely to impact on the operation of s 78. Source
The Norwich Pharmacal order is an exception to the general rule that only people who are actually named as parties to existing litigation are obliged to disclose documents and other materials relevant to the claims
For example: If X sues Y for fraud, X can usually only obtain relevant documentation from Y. However X cannot usually call for Z to provide documents, even though Z may have relevant or even key information. Z would normally only be obliged to produce this kind of information following a court order.
Original Case
Norwich Pharmacal Co. v Customs and Excise Commissioners [1974]
The Claimant was the owner and exclusive licensee of a patent for a chemical compound, furazolidone. Unlicensed consignments of the compound were imported into the UK, and constituted infringements of the patent. The Defendants had records of the identity of the importers. The Claimant had failed to determine the identity of the importers and brought a claim against the Defendants, for amongst other things, an order for disclosure of the names and addresses of the importers of furazolidone, the quantity imported by each importer and any other relevant documentation.
The Defendants objected to production of the documents on the basis that such disclosure would be injurious to the public interest because they contained confidential information.
The patent was assumed to be valid and the imported consignments, infringements. The Judge granted the order for disclosure. The Court of Appeal allowed the Defendants appeal and the Claimant appealed to the House of Lords.
Allowing the appeal and granting the order for discovery it was held that:
Recent Cases:
House of Lords in Ashworth Hospital Authority v MGN Ltd [2002]
“The Norwich Pharmacal case clearly establishes that where a person, albeit innocently, and without incurring any personal liability, becomes involved in a wrongful act of another, that person thereby comes under a duty to assist the person injured by those acts by giving him any information which he is able to give by way of discovery that discloses the identity of the wrongdoer.”
Smith v ADVFN PLC [2008] EWCA
The Court of Appeal considered the proper ambit of a Norwich Pharmacal order and, in particular, the coherency and quantity of the evidence supporting a Norwich Pharmacal order. The court held an applicant should be careful to provide the courts with a coherent body of data from which an allegation of wrong doing could properly be assessed.
The case gives valuable guidance not just on the nature, but also on the presentation of the evidence in support of a Norwich Pharmacal application. An indiscriminate and disorganised mass of material could be fatal to the application.
The case confirms that although Norwich Pharmacal relief is a useful tool in the litigation process, enabling a claimant to get documents and affidavits from a third party, it should be used with caution. If the claimant can get the documents from another source or by other means, the court will not grant the orders and the claimant may find itself facing the third party’s legal costs”. Source Freshfields
Additional Resources
The Mareva injunction (variously known also as a freezing order, Mareva order or Mareva regime), in Commonwealth jurisdictions, is a court order which freezes assets so that a defendant to an action cannot dissipate their assets from beyond the jurisdiction of a court so as to frustrate a judgment. It is named for Mareva Compania Naviera SA v International Bulkcarriers SA [1975] 2 Lloyd’s Rep 509, decided in 1975, although the first recorded instance of such an order in English jurisprudence was Nippon Yusen Kaisha v Karageorgis in 1975, decided very shortly before the Mareva decision; however, in the UK the Civil Procedure Rules 1998 now define a Mareva order as a “freezing” order. It is widely recognised in other common law jurisdictions and such orders can be made to have world-wide effect. It is variously construed as part of a court’s inherent jurisdiction to restrain breaches of its process.
It is not a security (Jackson v Sterling Industries Ltd), nor a means to pressure a judgment debtor (Camdex International Ltd v Bank of Zambia (No. 2)), nor does it confer a proprietary interest in the assets of the judgment debtor (Cretanor Maritime Co Ltd v Irish Marine Management Ltd). However, some authorities have treated the Mareva injunction as an order to stop a judgment debtor from dissipating his assets so as to have the effect of frustrating judgment, rather than the more strenuous test of requiring an intent to abuse court procedure. An example of the former would be paying off a legitimate debt (Iraqi Ministry of Defence v Arcepey Shipping Co SA), whereas an example of the latter would be hiding the assets in overseas banks on receiving notice of the action.
An Anton Piller Order, is a civil search order. It can be compared to Section 8 of PACE, in criminal law, though it requires stronger evidence.
The name Anton Piller order comes from the case – Anton Piller KG vs Manufacturing Processes Limited [1976].
The tests required for an Anton Piller Order are:
Section 8 of PACE gives power to magistrates to issue warrants, it depends on “reasonable grounds”
Section 22 of PACE allows the police to retain the evidence seized for as long as they need it.
Section 20 of PACE gives the police the power to seizes computers that could contain information, if they come under Section 19.
This is needed as data is not “property” or an “item” so the law specifically describes it in Section 20
Section 19 of PACE gives the police general powers to seize evidence
Under section 19 when a constable is lawfully on any premises he can seize anything which he finds on the premises if he has reasonable grounds for believing:
(i) that it has been obtained in consequence of the commission of an offence; or
(ii) that it is evidence in relation to an offence which he is investigating or any other offence;
And (iii) that it is necessary to seize it in order to prevent it being concealed, lost, damaged, altered or destroyed.