CHAPPELL v. THE UNITED KINGDOM



Application No. 10461/83

 

 

A. R. M. CHAPPELL

 

 

against

 

the UNITED KINGDOM

 

REPORT OF THE COMMISSION

 

(adopted on 14 October 1987)

 

TABLE OF CONTENTS

 

                                                            page

 

 

I.      INTRODUCTION (paras. 1-21)                            1

 

        A.  The application (paras. 2-4)                      1

 

        B.  The proceedings (paras. 5-16)                     2

 

        C.  The present Report (paras. 17-21)                 4

 

 

II.     ESTABLISHMENT OF THE FACTS (paras. 22-61)             5

 

 

III.    SUBMISSIONS OF THE PARTIES (paras. 62-92)            16

 

        A.  The applicant (paras. 62-72)                     16

 

        B.  The Government (paras. 73-92)                    18

 

 

IV.     OPINION OF THE COMMISSION (paras. 93-117)            23

 

        A.  Point at issue (paras. 93-95)                    23

 

        B.  Was there an interference with the applicant's   23

            rights guaranteed by Article 8 para. 1 of the

            Convention? (paras. 96-99)

 

        C.  Was the interference justified under Article 8   24

            para. 2 of the Convention? (paras. 100-116)

 

          (a) In accordance with the law                     24

              (paras. 100-106)

 

          (b) Necessary in a democratic society for          26

              a legitimate aim (paras. 107-116)

 

        D.  Conclusion (para. 117)                           29

 

 

DISSENTING OPINION OF MR. FROWEIN, joined by MM. TRECHSEL,   30

                      BUSUTTIL, SCHERMERS and VANDENBERGHE

 

SEPARATE OPINION OF MR. KIERNAN                              32

 

CONCURRING OPINION OF SIR BASIL HALL                         33

 

APPENDIX I      History of the proceedings                   35

 

APPENDIX II     Decision on the admissibility

                of the application                           37

 

    I.      INTRODUCTION

 

1.      The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

 

A.      The application

 

2.      The applicant is a British citizen born in 1948 and living in

Frome, Somerset.  He has been represented before the Commission by

Mr.  Ross Munro Q.C. and Mr.  Daniel Serota of counsel.  The Government

of the United Kingdom were represented by Mr.  M. Eaton and

Mrs.  A. Glover and subsequently by Mr.  M. Wood, all of the Foreign and

Commonwealth Office, London, as their Agents.

 

3.      In late 1980 and early 1981 the applicant operated a club for

the exchange of video cassettes.  A company controlled by the

applicant recorded video cassettes in breach of copyright which were

subsequently made available to subscribers through the applicant's

club.  On 26 February 1981 two film companies and an organisation

formed to protect film companies from activities carried out in breach

of copyright issued proceedings against the applicant's company and

the applicant and were granted an "Anton Piller Order" allowing

representatives of the film companies to enter the premises where the

applicant's company and the applicant carried on business ("the

premises") and to search for and remove copies of their films made in

breach of copyright and documents relating to the acquisition, supply

and disposal of such copies.  On 2 March 1981 the film companies'

solicitors met with the police outside the premises.  The police had

been informed that the applicant was involved in the supply of

pornographic video films and had obtained a search warrant to search

the premises and seize any such films.  By agreement between the

police and the solicitors for the film companies, both parties entered

the premises together and the police served and executed the search

warrant.  The solicitors for the film companies served the Anton

Piller Order on the applicant, and, after the applicant had taken

legal advice, proceeded to execute the Anton Piller Order

contemporaneously with the police search warrant.

 

4.      The applicant complains to the Commission of the way in which

the Anton Piller Order was served and the subsequent search was

carried out on the premises.  He contends that the execution of the

Anton Piller Order in the circumstances of this case, including the

simultaneous visit by the police and the film companies' solicitors,

the numbers of persons involved and the fact that the search of the

premises, which were both his home and his business, involved an

investigation of aspects of his private life, constituted a

disproportionate and unjustified interference with his rights

guaranteed by Article 8 of the Convention.

 

B.      The proceedings

 

5.      The application was introduced on 11 October 1982 and was

registered on 1 July 1983.

 

6.      On 14 October 1983 the Commission decided to bring the

application to the notice of the respondent Government and to invite

them to submit written observations on its admissiblity and merits

pursuant to Rule 42 para. 2 (b) of the Rules of Procedure.  The

respondent Government's observations were submitted on 26 January

1984, and observations in reply were submitted by the applicant on 2

July 1984.  Further observations were submitted by the respondent

Government on 28 September 1984.

 

7.      On 11 October 1984 the Commission decided to invite the

parties to make submissions on the admissiblity and merits of the

application at a hearing pursuant to Rule 42 para. 3 (b) of the Rules

of Procedure.  At the hearing, which was held on 12 March 1985, the

parties were represented as follows:

 

        For the Government:

 

        Mrs.  A. Glover, Foreign and Commonwealth Office, Agent

        Mr.  Nicholas Bratza, Counsel

        Mr.  R. Jackson, Treasury Solicitor's Department, adviser

        Mr.  Michael Carpenter, Lord Chancellor's Department, Adviser

        Dr.  Peter Ferdinando, Department of Trade and Industry,

                              Adviser.

 

        For the Applicant:

 

        The applicant in person

        Mr.  A. Whitehouse, Adviser.

 

8.      The Commission examined the admissibility of the application

in the light of the submissions which it received and, on

14 March 1985, declared admissible the applicant's complaint

concerning the way in which the Anton Piller Order was served and the

subsequent search was carried out on the premises.  The remainder of

the application was declared inadmissible.  The text of the

Commission's decision on admissibility is Appendix II to the present

Report.

 

9.      The parties were informed of the Commission's decision by

telephone on 14 March 1985 and by letter on 1 April 1985.  They were

further informed that the Commission had decided to invite the

respondent Government pursuant to Rule 45 para. 2 of the Rules of

Procedure to provide certain information concerning the execution of

the Anton Piller Order.  The time limit for the submission of this

information was to run from the dispatch of the text of the

Commission's decision on the admissibility of the application.

 

10.     The Commission's decision on admissibility was dispatched to

the parties pursuant to Rule 43 para. 1 of the Rules of Procedure on

23 May 1985.

 

11.     On 3 July 1985 the respondent Government provided the

information requested by the Commission, which was forwarded to the

applicant for his comments in reply.  The applicant's comments were

submitted on 19 August 1985.

 

12.     On 12 October 1985 the Commission resumed its examination of

the merits of the application and invited the parties to submit such

further observations on the merits of the application as they might

wish to make before 31 January 1986.

 

13.     On 6 January 1986 the respondent Government challenged the

submissions which the applicant had made on 13 August 1985 and sought

the Commission's ruling on the question whether the applicant was

entitled to introduce new material under the guise of commenting on

their answers to the Commission's questions.  In addition, the

respondent Government requested the Commission's permission, and

through the Commission, that of the applicant, to approach the

solicitors who had acted for the film companies in the proceedings

against the applicant, and the Bath police, with the contents of the

case file in order to be able to formulate their observations on the

merits.

 

14.     On 31 January 1986 the applicant, who had not been represented

at the start of the proceedings, informed the Commission that he had

appointed Mr.  Ross-Munro, Q.C. and Mr.  Daniel Serota of counsel as his

representatives.  On 5 March 1985 they filed a Memorandum on behalf of

the applicant containing further legal submissions.

 

15.     On 13 March 1986 the Commission resumed its deliberations on

the merits of the application and decided that the respondent

Government be informed that they might show the applicant's

submissions of 13 August 1985 to the solicitors acting for the film

companies in the proceedings against the applicant in the context of

the proceedings relating to the present application, and that the

parties be invited to make such further written submissions on the

merits as they may wish before 25 April 1986.  In addition, the

applicant's representatives were informed that notwithstanding the

submissions which they had made, inter alia, to re-open the question

of admissibility in respect of the exhaustion of remedies and the

applicability of Article 13 of the Convention, the Commission's

decision of 14 March 1985 determined the scope of that part of the

application declared admissible.  The time limit for submission of

these observations was extended by the President at the respective

parties' requests to 23 May 1986 in the case of the respondent

Government and 16 May 1986 in the case of the applicant's

representatives.  The respondent Government's observations were

submitted on 21 May 1986 and the applicant's representatives were

invited to submit any further observations in reply before 11 July

1986.  It was also noted that no observations had been filed by them

within the time limit which had expired on 16 May 1986.  The

applicant's representatives reply to the supplementary observations of

the respondent Government were submitted on 16 July 1986.

 

16.     After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. b of the Convention placed itself at

the disposal of the parties with a view to securing a friendly

settlement; in the light of the parties' reaction, the Commission now

finds that there is no basis upon which a settlement can be effected.

 

C.      The present Report

 

17.     The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes in plenary session, the following members being present (1):

 

              MM. C. A. NØRGAARD, President

                  J. A. FROWEIN

                  S. TRECHSEL

                  F. ERMACORA

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A. S. GÖZÜBÜYÜK

                  J. C. SOYER

                  H. G. SCHERMERS

                  H. VANDENBERGHE

             Sir  Basil HALL

 

18.     The text of this Report was adopted by the Commission on

14 October 1987 and is now transmitted to the Committee of Ministers

in accordance with Article 31 para. 2 of the Convention.

 

19.     The purpose of the Report, pursuant to Article 31 para. 1 of

the Convention is

 

        (i)  to establish the facts, and

 

        (ii)  to state an opinion as to whether the facts found

        disclose a breach by the State concerned of its obligations

        under the Convention.

 

20.     A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

 

21.     The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

 

__________

(1) Mr.  B. Kiernan was not present when the final vote was taken,

    but the Commission decided when adopting this Report under Rule 52

    para. 3 of the Rules of Procedure to permit him to express his

    separate opinion.

 

II.     ESTABLISHMENT OF THE FACTS

 

22.     The applicant is a British citizen born in 1948 and living in

Frome, Somerset.

 

23.     In late 1980 and the early part of 1981 he operated a club for

the exchange of video cassettes under the name of the Video Exchange

Club, through a company which he controlled, Video Exchange Limited.

According to the applicant, Video Exchange Limited operated by

"pirate" (i.e. unauthorised) recording of video cassettes which were

subsequently made available through the Video Exchange Club.  These

pirate recordings were made in breach of copyright, but the applicant

contends that he had been advised that the means by which these videos

were distributed was, in fact, lawful.

 

24.     The applicant's business activities with pirate recordings

came to the attention of two film companies and an organisation formed

to protect film companies from activities carried out in breach of

copyright ("the plaintiffs").  They employed an investigator who was a

former policeman.  The investigator discovered that the applicant and

his company were in his view breaching the plaintiffs' copyright.  He

so reported to the plaintiffs, who took steps to obtain an Anton

Piller Order against the applicant and his company.

 

        Domestic law and practice concerning Anton Piller Orders

 

25.     An Anton Piller Order governs the compulsory collection and

taking of evidence in certain civil proceedings.  It may be granted at

the initiation of civil proceedings to an intending plaintiff, and

orders the proposed defendant to reveal and allow inspection of

evidence in his possession or known to him.  The order is mandatory

and failure to comply with it may place the proposed defendant in

contempt of court.  (This he may decide to risk, and refuse compliance,

if he considers that the whole basis of the civil proceedings against

him is so insubstantiated that he could persuade the court that the

order should never have been granted.)  The order would be granted in

cases where the court is satisfied that essential evidence would, or

might be, lost, or destroyed, unless the order is made, and hence that

the intending plaintiff's action would be seriously prejudiced if no

order was made.  For the same reason, orders are typically made ex

parte, i.e. without notice to the proposed defendant, for fear that

notice to the proposed defendant would jeopardise the evidence.

 

26.     An order is granted on detailed terms specified by the Court

on the intending plaintiff's application.  The intending plaintiff

will submit to the judge a draft order in the terms which he seeks and

the application will be supported by sworn affidavits (or drafts which

are sworn subsequently) setting out evidence as to the way in which

the prospective defendant carries on his business and how the

intending plaintiff's rights - for example copyright in videofilms -

are prejudiced thereby.  The Court of Appeal (Lawton LJ) has described

the purpose for which an Anton Piller Order may be used in the

following terms:

 

        "Those who make charges must state right at the beginning what

        they are and what facts they are based on.  They must not use

        Anton Piller Orders as a means of finding out what sort of

        charges they can make."

 

        (Hytrac Conveyers Ltd v.  Conveyers International Ltd (1982)

        3 All E R 415).

 

27.     Before making an order the Court must be satisfied first that

the intending plaintiff has made out a strong prima facie case that

his claim will succeed, secondly that the damage which has occurred or

will occur is very serious to the intending plaintiff and thirdly that

there is clear evidence that the prospective defendant has in his

possession incriminating documents or things and that there is a real

possibility that he may destroy such material if given notice of the

application.

 

28.     If the Court is so satisfied it will impose various terms and

conditions in the order.  These may include an undertaking by the

intending plaintiff to pay any damages which may result from the order

if the claim ultimately fails at trial, an undertaking that the order

and evidence in support will be served on the proposed defendant by

the intending plaintiff's solicitor, who is an officer of the Court.

In addition the intending plaintiff's solicitor would undertake to the

Court to offer to explain to the person served with the order its

meaning and effect fairly and in every day language and to advise him

that he has a right to obtain legal advice before complying with the

order or parts of it, provided that such advice is obtained forthwith.

Finally, the intending plaintiff's solicitor would undertake to

retain in his safe custody anything taken under the order.

 

29.     The solicitor might also undertake to answer the prospective

defendant as to whether any particular item is within the scope of the

order, to use the information received only in connection with the

proceedings in question and to ensure that the execution of the order

remains under the control of a solicitor at all times.  In view of the

solicitor's status as an officer of the Court, such an undertaking

could provide the Court with a sanction over the way in which an order

is implemented.

 

30.     An order will contain an injunction to restrain the

prospective defendant from dealing with infringing articles, such as

pirated video tapes, and order compelling disclosure to the intending

plaintiff of the whereabouts of infringing materials and documents and

their suppliers and recipients, an order to deliver such materials and

documents to the intending plaintiff, an order to allow the intending

plaintiff entry to premises and to allow him to search the premises

and an order that the prospective defendant should serve a sworn

statement containing the information which the order requires him to

disclose within a specified time-limit.

 

31.     An Anton Piller Order is to be distinguished from a search

warrant in that, first, it is issued in civil, not criminal,

proceedings, secondly, it is issued to private parties to litigation

and not the police and, thirdly, it does not authorise entry by force,

but only orders the prospective defendant to permit entry.  The

intending plaintiff has no right to force an entry to the premises if

permission is refused.

 

        The conditions attaching to the Anton Piller Order ("the

        Order") granted in the present case

 

32.     On 26 February 1981 the plaintiffs applied to a judge for an

Anton Piller Order.  Their application was supported by two

affidavits, one sworn by the investigator and one by the solicitor H,

in the firm of solicitors with day to day responsibility for the

conduct of the litigation on behalf of the plaintiffs.

 

33.     In the present case the Order which was granted prohibited the

applicant and his company from in any way parting with possession of

any illicit copy of any film the copyright of which was owned by the

plaintiffs, or parting with possession of any documents relating to

the supply of such films to other persons, or warning any person of

the possibility of further proceedings being taken against such other

persons.

 

34.     In addition, the Order provided:

 

        "That the Defendants and each of

        them ... do permit such persons as may be duly authorised by

        the plaintiffs, not exceeding three in number, together with

        their solicitor and not more than one other solicitor or

        employee of the plaintiffs' solicitors, to enter forthwith

        the said premises and any other premises under the control of

        the Defendants or any of them (which

        premises they are by this Order obliged to disclose) on any

        week day at any time between eight o'clock in the morning and

        nine o'clock in the evening for the purpose of searching for

        and removing into the custody of the plaintiffs' solicitors

        any of the following articles :

 

        (a) any unlicenced copies of any relevant film (as defined) or

        any copies of a substantial part thereof, whether such copies

        be on tape or celluloid or in any other medium

 

        (b)  any documents which appear to relate to the acquisition,

        supply or disposal of such copies as aforesaid."

 

35.     In addition, the applicant was ordered to reveal to the

plaintiffs' solicitors the whereabouts of all the documents specified

in the Order, and to supply the names and addresses of all persons to

whom the applicant and his company had supplied or offered to supply

pirated cassettes.  Finally, the Order required that the applicant

swear an affidavit containing this information within four days of the

service of the Order on him.

 

36.     The plaintiffs gave undertakings to issue and serve the

proceedings against the applicant and his company for breach of

copyright in respect of which the Order was a preliminary step.  The

plaintiffs gave further undertakings as follows:

 

        "(c)  to abide by any order this Court may make as to damages

        in case this Court shall hereafter be of opinion that the

        Intended Defendants (hereinafter called the Defendants) shall

        have sustained any loss by reason of this Order which the

        plaintiffs ought to pay

 

        (d)   that any articles or documents obtained as a result of

        this Order shall be retained by the plaintiffs' solicitors in

        safe custody until further order

 

        (e)   not to use any documents or information obtained as a

        result of the execution of this Order save the purpose of

        civil proceedings against these Defendants or third parties in

        connection with the subject matter of this dispute without

        leave of the Court and

 

        (f)   not to commence or instigate any criminal proceedings

        against any of the Defendants herein in respect of the acts

        forming the subject matter of this action".

 

37.     This interim relief was granted until 5 March 1981 or until

further order.

 

38.     The Order so granted was not executed separately, but

contemporaneously with a police search warrant.  This occurred as a

result of the way in which the applicant's activities came to the

attention of the plaintiffs' investigator.  The investigator had

visited the applicant's business premises, which it seems were also

the applicant's home, on 16 February 1981, in order to collect pirate

video cassettes of three films, the copyrights of some of which were

owned by the plaintiffs.

 

39.     The investigator was shown an extract from one cassette which

he considered to be obscene.  In describing this incident in a passage

of his affidavit in the subsequent proceedings which was criticised by

the judge at first instance for incompleteness, the investigator

stated that he "did not pursue this as such material is not of

interest to my (employers)".  In fact, straight after his visit to the

premises, the investigator went to the Bath police and informed them

of the material.  The investigator spoke with Detective Chief

Inspector A. whom he provided with a written statement.  Following the

investigator's report, the plaintiffs instructed their solicitors to

obtain the Order in respect of the evidence on the premises.  On 17

February 1981 the investigator informed the solicitors in this

connection that the Bath police were interested in the "porno

material" which he had seen at the premises.  A note of their telephone

conversation states that they discussed "arrangements" to be made

"with the police in Bath".

 

40.     On 24 February 1981, the investigator telephoned Detective

Chief Inspector A. at the plaintiffs solicitors' request to inform him

that the Order was to be applied for on 26 February 1981 and that, if

the Order was granted, the intention was to serve and execute it on

2 March 1981.  He arranged with Detective Chief Inspector A. that, if

the Order was obtained, there would be a meeting between those who

were to serve and execute it and the Bath police at Bath police

station at 10.45 in the morning of 2 March 1981.  The judge at first

instance in the subsequent proceedings found as a fact that the Bath

police's plan to obtain and execute a search warrant in connection

with possible proceedings under the Obscene Publications Act 1959 at

or about the same time as the Order was discussed and that this was

the reason for the arrangements to meet at the police station before

going to the premises.

 

41.     The judge at first instance in the subsequent proceedings

found that there were various inaccuracies in the investigator's

affidavit, including the omission of a clear explanation of the

investigator's contact with the police following the visit to the

premises.  As a result, the judge who considered the plaintiffs'

application for the Order was not on notice of the plan to serve the

Order and a search warrant at the same time.

 

42.     When applying for the Order counsel for the plaintiffs

referred to the proposed search warrant which the police were seeking,

and the cooperation between the plaintiffs and the police, in the

following terms:

 

        "(Counsel for the plaintiffs): My Lord, there is one other

        matter which I ought to draw to your Lordship's attention and

        that is that the local police force are very much interested

        in these defendants in relation to matters which are not the

        subject of this action, namely, the adult films.

 

        (The application judge): Yes.  Well, that is a different matter

        altogether.

 

        (Counsel for the plaintiffs): My Lord, it is a different

        matter, but I felt I ought to draw your Lordship's attention

        to the fact that they propose a visitation upon

        applicant> and his company at about the same time as we

        propose to serve this order upon them.

 

        (The application judge): Yes, but they are not interested in

        ...

 

        (Counsel for the plaintiffs): No.

 

        (The application judge): ... these films.

 

        (Counsel for the plaintiffs): They are just interested in the

        obscenity.

 

        (The application judge): It's only the self-incrimination.

 

        (Counsel for the plaintiffs): My Lord, that's right.

 

        (The application judge): So far as that is concerned there is

        no indication that the police are ...

 

        (Counsel for the plaintiffs): None whatever.

 

        (The application judge): As to that you gave the undertaking."

 

43.     The reference made by the application judge to the plaintiffs'

undertaking was presumably a reference to an undertaking by the

plaintiffs not to use the material to be seized under the Order in

connection with any criminal, as opposed to civil, proceedings against

the applicant.  Hence the application judge appeared to be asking

whether there was any indication that the police, in seeking a search

warrant, were interested in the same films as the plaintiffs.

 

44.     The judge at first instance in the subsequent proceedings

described the plaintiffs' actual intentions in respect of their

proposed cooperation with the police as being "more accurately

expressed" in their solicitors' letter to the applicant of

27 August 1981.  The solicitors there stated:

 

        "We would like to deal ... with the point about the

        simultaneous execution of the police search warrant with

        the ... e would like to make our position

        plain...  On 17 February first received instructions

        to obtain an .  It is quite clear from our attendance

        note of the conversation that also told

        that the police were interested in you and

        company> in relation to pornographic material.  It was also

        clearly assumed that should the police wish to take action

        then a joint execution of the search warrant and the

        would be the ideal arrangement.  Obviously anything other than

        a simultaneous execution might well prove to be to little or

        no effect.  Of course noone could be certain at that time that

        such simultaneous execution would take place since it

        depended, inter alia, on a judge granting a full Anton Piller

        Order and the police obtaining a search warrant quite apart

        from any other practical difficulties.  That was the position

        when the application before the application judge was made on

        February .  Let us be quite clear, we do not in any

        way deny that it was the intention that the , if

        granted, would be served and executed at the same time as the

        search warrant, assuming that was granted to the police and

        that the other arrangements could be made.  We repeat that

        such is obvious.  We also think reference to the transcript

        >

        makes it quite clear that the application judge was informed

        of the police interest and the likelihood or possibility of a

        search warrant being executed."

 

45.     As soon as the Order had been granted, the plaintiffs'

solicitor informed the Bath police who had themselves obtained a

search warrant on the same day.  It was agreed to proceed as

previously arranged to conduct both searches on 2 March 1981.

 

        The events of 2 March 1981

 

46.     On 2 March 1981 the plaintiffs' party, consisting of H and

another solicitor and three employees of the plaintiffs, including the

investigator, met at Bath police station at 10.45 with the police

officers responsible for implementing the search warrant.  There were

eleven policemen, who were in plain clothes; they were led by

Detective Chief Inspector A.  The police party and the plaintiffs'

party then went to the premises.  The investigator went in first,

posing as a customer as on his previous visit.  His stated object was

to be able to "observe what happened right from the start".

 

47.     Thereafter Detective Chief Inspector A rang the door bell.  He

was accompanied by some of the plaintiffs' party including H and the

other solicitor, but by no policemen.  The door was opened by a lady

who sought to refuse admission.  Detective Chief Inspector A produced

the search warrant and told her that he would enter whether she liked

it or not.  She then reluctantly let the group in.  The judge at first

instance in the subsequent proceedings found that she "obviously took

it that H and the others were also police officers".

 

48.     The premises were on four floors.  The ground floor entrance

gave access to a corridor and the stairs leading to the upper floors.

On the first floor the applicant had his office and there was a

general office.  On the second floor there was the applicant's bedroom

and the office of an employee of the applicant's company.   On the

third floor there were three further rooms, one of which was

apparently not used for the applicant's business purposes.

 

49.     Detective Chief Inspector A and those of the plaintiffs' party

who accompanied him found the applicant on the first floor in his

office.  He was served with the search warrant and the remaining ten

policemen entered the building at 11.40.  They were assigned one to

each room, one to the front door, two to seize the materials and

Detective Chief Inspector A to oversee the operation (total 11

policemen).  Their search was concluded at 16.20, after 274 items had

been logged and signed for, the majority of them being video tapes.

 

50.     As soon as the search warrant had been served and while the

police were beginning their search, H served the Order on the

applicant.

 

51.     The applicant was advised by H of the effect of the Order and

of the advisability of obtaining legal advice.  He arranged for a

member of the firm of solicitors whom he usually instructed to attend;

the only person at the firm who was available was a trainee solicitor

who arrived shortly thereafter.  During this interlude, the police

proceeded to execute their search warrant, but the search under the

Order was not begun.

 

52.     On the arrival of the trainee solicitor, the applicant, who

was distracted by the police search, was advised of the implications

of the Order and accepted service of it.  The trainee solicitor

accepted service of the Order on behalf of the applicant's company.

Thereupon the plaintiffs' party started their search of the premises

contemporaneously with the police search which was still in progress.

The applicant contended before the domestic courts that he was

stunned and overwhelmed by the scale of the searches but the courts

found, having heard the evidence, that he was as well able to look

after his interests as anyone in his position would have been.

 

53.     The applicant contends that owing to the contemporaneous

searching of the premises by the police and the plaintiffs' party he was

unable to supervise the search and to take note of the documents which

were seized.  In particular he contends that a number of private and

confidential documents of a personal nature were seized by the

plaintiffs' solicitors which had no bearing on the action which they

were bringing against him.  These documents included bank statements,

the mortgage on the applicant's life assurance policy, details of the

applicant's non-registration for value added tax (a criminal offence),

a confidential bill from the applicant's previous partner and

solicitor, details of adult films in respect of which the applicant

was negotiating, and a privileged written barrister's opinion on the

legality of the activities conducted by the applicant through his

company.  In addition, the applicant contends that the correspondence

between him and girlfriends and other personal correspondence was

seized by the plaintiffs' solicitor.  Furthermore, the applicant

contends that further highly confidential documents were seized,

including a leaflet showing that he was using contact magazines to

meet men and women for sexual relations, correspondence concerning the

applicant's relationship with his former partner's wife and various

other correspondence and documentation implicating the applicant more

or less directly in various criminal activities concerning the use of

drugs and the supply of "hard core" pornographic materials.  The

Government submit that they are not in a position to dispute or

comment upon these contentions because they were not a party to the

search.

 

54.     A file note on the plaintiffs' solicitors' file confirms that

H went through the drawers of correspondence and other documents on

the premises and "encountered some protest" from the applicant "who

attempted to separate material which he claimed was not relevant," but

that "all necessary material was finally removed ...".  It also

appears from that note and another contemporaneous note made by

another solicitor present for the plaintiffs that after the search of

the premises, the plaintiffs' solicitors went back to the police

station and went through the documentation which the police had seized

under the search warrant and copied certain relevant documents.  The

applicant was not present.

 

55.     Under the terms of the Anton Piller Order, the applicant was

obliged to swear an affidavit of disclosure relating to his business

activities including the operation of the Video Exchange Club, within

four days.  The case came before the High Court with both parties

present on 5 March 1981 when the applicant was granted further time

to swear his affidavit.  Thereafter the applicant changed solicitors

twice and visited the plaintiffs' solicitors' office several times to

examine the seized documents.  On 6 May 1981 he was served with a

notice of motion for contempt of court for failure to file the

affidavit.

 

56.     On 26 May 1981 the applicant withdrew his instructions from

the second firm of solicitors and counsel who had been advising him

and from then on conducted his case in person.  The applicant then

issued a variety of cross motions against the plaintiffs, alleging

that the Order had been obtained improperly, and improperly executed,

in particular because the judge who granted the order had been

inadequately informed of the plaintiffs' plans to execute the Order in

concert with the police execution of their search warrant.  He

contended that this combined operation, of which the judge was not

made aware, made both the search warrant and in particular the Order

and the evidence obtained under it invalid.  These proceedings came

before the High Court on 27 July 1981 and were followed by the issue

of committal proceedings by the plaintiffs to have the applicant

committed to prison for contempt of court for failure to file the

affidavit of disclosure required by the original Order.

 

57.     On 10 November 1981 the High Court gave judgment on these

respective motions after substantial argument and held that, in the

light of the inadequacies of one of the affidavits which had supported

the original application for the Order, and of the need for alertness

in controlling the scope of Anton Piller Orders, the applicant and his

company should be relieved from the undertaking to make an affidavit

of disclosure concerning the operation of their business practices and

the names and addresses of the members of the Video Exchange Club.  In

particular the Court considered that, had the proposed cooperation

between the police and the plaintiffs in the operation of the search

warrant and the Order been brought to the attention of the High Court

more clearly when the Order was granted, it was probable that the

Court would have provided further safeguards for the applicant to

ensure that he was better able to be advised as to the relevance of

the Order and to protect his interest generally during its execution.

 

        The judge held:

 

        "In my judgment, there was nothing inherently wrong with the

mode of execution of the Order, except that the presence of the police

executing their search warrant at the same time made it more

oppressive than it should have been.  In my judgment the real vice

lies in the fact that (the judge who granted the Order) was not told

with all the candour that was called for in the circumstances what the

intentions of the plaintiffs and of the police were ...  As the facts

in this case show, the simultaneous execution of a search warrant and

of an Order also makes it difficult for a defendant's solicitor to

explain to him fully what the Order means and ... for the Defendant to

give adequately considered instructions to his solicitor."

 

        He added:

 

        "In my judgment the rule of full disclosure to the court is

almost more important in Anton Piller cases than in other ex parte

applications.  Since Anton Piller Orders give compulsory rights of

inspection, once those inspections have taken place the information

procured from it is in the hands of the other side and the situation

is irreversible."

 

58.     At the same time the High Court found the applicant and his

company to have been in contempt of court in failing to make the

affidavit of disclosure, but concluded that it would  not be

appropriate, in the light of the relief which had already been granted

to the applicant in relation to the undertakings which he had given,

to impose a penalty on him for this contempt.  However the applicant

did not obtain the return of the documents and materials seized from

the premises under the Order.

 

59.     The applicant and the plaintiffs appealed from this decision

to the Court of Appeal, which appeal was heard on 15 June 1982.  The

Court of Appeal noted that an Anton Piller Order was a "draconian

remedy" which:

 

        "infringes by the very necessity of the type of case in which

        it is appropriate what is normally a fundamental principle of

        our law, audi alterem partem.  There is, in the eye of an

        English lawyer, something offensive in the concept of an order

        which, by its very nature, infringes the citizen's privacy as

        a result of proceedings in which he has never had an

        opportunity of being heard and of which he has not even

        previously been informed.  That such a procedure is both

        necessary and salutary in the type of case in which it has

        become familiar is not in doubt, but its very nature as an ex

        parte measure underlines the overriding importance, first that

        the court to which application is made for an order should be

        put fully and accurately in possession of every fact material

        to the question of whether an order should be made; and,

        secondly, that the stipulations which the court normally

        incorporates into such orders for the protection of the

        proposed defendants should be observed not only in the letter

        but in the spirit.

 

        ...(These) are necessary and important safeguards of the

        interests of the person who ex hypothesi has not been before

        the court and has had no opportunity of being heard or even of

        suggesting that he may have some defence to the plaintiffs'

        claim."

 

        In the leading judgment of the Court, Lawton LJ held:

 

        "There may be many ways of ensuring that if the

police execute a search warrant the solicitors executing an

Anton Piller Order can come upon the scene sufficiently

quickly to ensure that there is no real chance of a

defendant destroying useful evidence;  but an order should

ensure that the appropriate steps are taken to avoid the

kind of incident which happened in this case.  It is most

undesirable that solicitors executing an Anton Piller Order

should seem to be the hangers on of a squad of police

officers carrying out a search under a search warrant."

 

60.     The Court of Appeal held that the inadequacies of the

affidavit supporting the original application for the order and the

manner of the execution of the order were "very unfortunate", in that

they deprived the applicant of the proper opportunity to raise any

objection which he might have had to the entry of the plaintiffs'

solicitors, an aspect which was described as "disturbing".

Furthermore, it stated that where an order was to be served at about

the same time as the police execute a search warrant it was

"absolutely essential that the court dealing with the matter should

be told that this is to be done and told clearly what is proposed."

Nevertheless the Court of Appeal held that these defects did not

justify releasing the applicant from the undertakings which he had

given, which undertakings of disclosure were therefore re-imposed,

although no penalty was imposed for the applicant's contempt of court

by his failure until then to comply with the undertakings.  In

addition, the Court of Appeal refused leave to appeal to the House of

Lords and the applicant's petition to the House of Lords for leave to

appeal was rejected on 7 October 1982.

 

61.     Thereafter the applicant consented, allegedly under the duress

of the risk of self-incrimination, to a consent order under which he

was restrained from any dealings with pirated video tapes, was

compelled to make an affidavit of disclosure, but omitting the names

and addresses of anyone who was a bona fide member of the Video

Exchange Club.  In addition the plaintiffs and their solicitors were

released from the undertakings as to the confidentiality of the

material received by them under the terms of the order, and both sides

were released from any liability or claim arising under the

proceedings or under any counter-claim.  It was further agreed that

the documents and films seized under the Order should be returned to

the applicant and the proceedings terminated.

 

III.    SUBMISSIONS OF THE PARTIES

 

        A. The applicant

 

        The facts concerning the execution of the Order

 

62.     The applicant contends first that the police assisted the

plaintiffs in the service of the Order on him on 2 March 1981.  By

virtue of the prearranged plan between the police and the plaintiffs,

the plaintiffs were able to gain entry to the premises without him

being able to challenge their right to do so.  In addition, since the

police immediately started their search under the search warrant, the

applicant was not in a satisfactory position to consider how he should

react to the Order, a question which he had to consider while the

police search was underway.

 

63.     He contends that the purpose of an Anton Piller Order, namely

the protection of evidence which the proposed defendant is thought

likely to destroy or tamper with if he is given notice of an

application for the inspection of documents, could perfectly well have

been served in the present case had the police search been conducted

first and separately, and if, thereafter, the applicant had been

immediately asked to permit the plaintiffs' solicitors and employees

to enter the premises to carry out a search under the Order.

 

64.     The applicant contends that both the police and the plaintiffs

stood to gain from the contemporaneous search procedure which was

followed, since this procedure ensured that the applicant was unable

to give his full attention to the supervision of either search.  As a

result, the operation of the Order was significantly more onerous on

the applicant than had been intended by the judge who granted it.

 

65.     The applicant further contends that the scale of the police

operation, in the use of 11 policemen as contended by the respondent

Government, or, as the applicant contends, 12 policemen, and an

additional 8 who allegedly brought lunches to the policemen, carrying

out the search under the warrant, was intended to overwhelm the

applicant and to prevent him from being able to respond adequately or

at all to the two contemporaneous searches.  The applicant contends

that it is inconceiveable that such a large number of policemen would

have taken so long to amass the relatively limited amount of material

which was seized under the search warrant.  He contends that the sole

purpose of the surplus policemen was to assist in the execution of the

Order.  This degree of collusion is further illustrated by the meeting

held at the Bath police station after the search of the premises had

been completed.

 

66.     The applicant points out, in support for his contention that

the police and the plaintiffs were operating in collusion and in

cooperation in their combined and contemporaneous search of the

premises, the fact that both searches were terminated simultaneously,

at 16.20, and that the plaintiffs' party then accompanied the

police to Bath police station where further documents seized by the

police during the course of the police search were examined by the

plaintiffs' party.  The applicant contends that the effect of the

cooperation between the police and the plaintiffs' party, and the

number of police involved was intended to overwhelm him, to create an

atmosphere of oppression, and to negate his rights.

 

67.     Furthermore, it appears from the replies given by Detective

Chief Inspector A in the proceedings between the applicant and the

plaintiffs that arrangements for combined visits under an Anton Piller

Order and a police search warrant were a "normal procedure" and that

it was the plaintiffs' practice to notify the police whenever they

came across pornographic material in their investigation of video

piracy.  As the judge at first instance recognised, the applicant's

ability to control what was taking place was severely restricted by

the presence of the large party of police, in addition to the five

members of the plaintiffs' party.  It appears however that the police

were unfamiliar with the restrictions imposed upon the plaintiffs by

the terms of the Order, and specifically did not appreciate that the

plaintiffs could themselves only remove the applicant's documents with

his consent, whereas the police had the right to seize any documents

covered by the terms of the search warrant.  Accordingly, the police

supplied the plaintiffs' solicitors with various books of accounts and

the solicitors were able to examine these without the applicant's

consent, together with other documents seized by the police, and to

obtain photocopies of them.

 

68.     In addition it appears from the cross-examination of

Detective Chief Inspector A in the proceedings at first instance that

he was unaware that it was open to the applicant to refuse entry to

the plaintiffs.  Hence, although the plaintiffs' solicitors waited

without searching until the trainee solicitor came to advise the

applicant as to the scope and meaning of the Order, the applicant's

right to prevent entry to the premises had been rendered nugatory by

reason of the presence of the large police party and hence the

applicant was unable to effectively control the two simultaneous

searches.  Thus the plaintiffs' solicitors seized a large number of

personal documents which had no connection with the proceedings

against the applicant and his company.

 

69.     It has indeed never been established in the civil proceedings

which were commenced by the plaintiffs or otherwise that the applicant

was involved in large-scale video piracy, or in breaching copyright.

Nor has the applicant been charged with any criminal offence in

relation to the possession of pornographic video cassettes, and he had

always denied having traded in pornography.

 

        The grant and execution of the Order in the context of

        Article 8 of the Convention

 

70.     The domestic courts recognised the draconian and extreme

nature of an Anton Piller Order.  The circumstances of the present

Order and the invasion of the applicant's home and premises which it

constituted are well illustrated by both the scale of the raid, its

simultaneous execution with a large police party, and with a total of

16 persons, and the seizure by the plaintiffs' solicitors of various

personal documents in the course of the thorough search of his

business premises which were at the same time acknowledgedly his home;

thereupon the search was further conducted in the absence of the

applicant at Bath police station where the plaintiffs had access to

the documents seized by the police which the applicant was unable to

control in any way.

 

71.     Despite the drastic nature of the interference which the Order

constituted with the applicant's rights under Article 8, he was

deprived of his right to prevent the plaintiffs from entering the

premises, and thereby either to refuse a search under the Order, or to

postpone it so that it was not conducted contemporaneously with the

execution of the police search warrant.

 

72.     Whether or not Anton Piller Orders can be justified in general

under the terms of Article 8, the manner in which the Order was

obtained and executed in the present case gave great cause for concern

to the judge at first instance and to the Court of Appeal, and, it is

submitted, violated the applicant's rights by depriving him of the

important right to decide if and when to permit the plaintiffs' party

to enter the premises and deprived him of the right to adequately

supervise the material removed and to list the same.  Additionally, the

presence of the police party was oppressive, and constituted

oppressive, unfair conduct, quite disproportionate to any legitimate

aim of the plaintiffs.  The simultaneous raid by the police and the

plaintiffs, as has been observed, rendered nugatory the important rights

given to the applicant to refuse entry to the plaintiffs, to decide

which documents they should be permitted to remove, and inhibited the

applicant in his ability to supervise and be aware of the ambit of the

various searches.  This compounded the applicant's difficulties and,

it is submitted, led to his inability to have the opportunity of

seeing, examining and copying documents removed.  In these

circumstances, coupled with the presence of the police party, the

search was more oppressive than it should have been and rendered the

grant and execution of the Order a breach of Article 8 of the

Convention.

 

        B. The Government

 

        The facts concerning the execution of the Order

 

73.     The respondent Government point out that they are not privy to

first-hand information concerning the operation of the search under

the Order, since this was conducted by the plaintiffs' solicitors, an

independent firm.  Nevertheless, the information which has been

provided by the solicitors, together with the account given in the

judgments in the proceedings at first instance and on appeal provide

an adequate basis for the Commission to establish the facts in the

present case.

 

74.     The respondent Government submit a letter from the partner

with overall responsibility for the litigation conducted by the

plaintiffs against the applicant and his company and prepared

expressly for the purposes of the Commission's examination of the

present application together with a letter from the acting Chief

Superintendent of the Avon and Somerset Constabulery, both of which

letters were prepared by way of reply to the allegations as to fact

made by the applicant in the proceedings on the merits.

 

75.     The plaintiffs' solicitors' letter contradicts the applicant's

assertion that there was a prearranged plan involving the plaintiffs,

their solicitors and the police to obtain an Anton Piller Order and

search warrant, to simultaneously serve and execute them with a large

number of people, in a way designed to overwhelm the applicant and

with the purpose that the plaintiffs and the police would gain

advantages which they would not otherwise have had.  Such an

allegation is simply untrue; the plaintiffs' solicitors in no way

encouraged the police to obtain a search warrant nor discussed the

question with them.  The partner concerned had experience of serving

and executing Anton Piller Orders on behalf of the plaintiffs without

the involvement of the police and without difficulty and the decisions

to seek the Order, and that of the police to seek a search warrant

were wholly unconnected one with the other.

 

76.     The fact that the police were granted a search warrant was

relevant in the respect that, if two searches were carried out of the

premises, there was a risk that the evidence with which the second

search in time was concerned would be removed.

 

77.     Furthermore, the practical arrangements taken by the police

for the service of the search warrant were a matter entirely for them,

outside the knowledge of the plaintiffs' solicitors until the morning

of 2 March 1981.  The solicitors sought no advantage from cooperation

with the police, save avoiding the risk of one or other search being

made ineffective by the destruction of evidence before the second

could be conducted.

 

78.     It was clear that the judge was informed when the Order was

applied for that it was likely that there would be simultaneous

service and execution of the search warrant and the Order.  With the

benefit of hindsight the manner in which the judge was informed could

have been more explicit, but the courts accepted that there was no

intention by the plaintiffs' solicitors, or their counsel, to keep the

intention of the contemporaneous search with the police search from

the knowledge of the courts.

 

79.     On 2 March 1981 the joint meeting at the police station was

an obvious practical arrangement.  It was agreed between H and

Detective Chief Inspector A that joint entry should be effected to

the premises in case there was any problem in obtaining entry in order

to effect service of the Order.  Although the applicant makes much of

his right to refuse entry to those serving and executing the Order he

fails to make an important distinction between these two steps.  Once

the applicant had been served with the Order, H stressed to him that

he had the right to consult a lawyer and, according to the terms of

the judgment of the Court of Appeal, was not prepared to exercise any

rights he had under the Order until a solicitor arrived to advise the

applicant.  Once the applicant had been advised, and accepted service

of the Order the search proceeded according to the terms of the Order.

It is notable that neither the applicant, nor his legal adviser asked

the plaintiffs' party to leave the premises either immediately, or

after consultation about the terms of the Order.

 

80.     The applicant's further allegation concerning the manner in

which the Order was executed is unfounded.  The manner of execution

was carried out with the agreement of both the applicant and his legal

adviser, and at no time did the applicant ask H not to search a

particular room except in his presence, nor did he ask the execution

of the Order to be delayed until the police had completed their

execution of the search warrant.  The video tapes to be removed were

listed at the time of the search, although whether the applicant was

then provided with a copy of that list is unclear; the list was

exhibited to an affidavit sworn on 5 March 1981.

 

81.     Only those documents which seemed to H to be of relevance

were taken, but obviously in view of the scale of documentation

involved, a very quick and necessarily preliminary judgment had to be

made on the question of relevance.  The applicant made no request for

the documents to be itemised and the Order did not require such

itemisation.  Had it done so the practical difficulties would have

been very considerable, owing to the quantities of documents involved.

Nevertheless, the applicant did make copies of certain documents which

were seized.

 

82.     Although the applicant's legal adviser was only a trainee

solicitor at the time of the incident, he was nevertheless a wholly

independent person, unconnected with the police or the plaintiffs'

solicitors.  His evidence at first instance was that there was nothing

irregular or improper in the way that H behaved on 2 March 1981 and

according to the Court of Appeal it was abundantly clear that, once

entry was effected and the Order served, H behaved with complete

propriety.

 

83.     The applicant was subsequently provided with numerous

opportunities to view the documents and materials seized from the

premises which had been transported to the plaintiffs' solicitors'

offices.  As a result of the applicant's own conduct this process was

not completed until June 1981, although the opportunity for him to

view the material was provided on a number of occasions, even when he

arrived unannounced.

 

        The grant and execution of the Order in the

        context of Article 8 of the Convention

 

84.     In contending that the grant and execution of the Order in his

case was not justified under paragraph 2 of Article 8 of the

Convention, the applicant advanced two principal submissions:  it was

submitted, in the first place that it was oppresive and unnecessary

that such a severe procedure should be invoked by a corporation

against a person such as himself who was engaged in a comparatively

small video piracy business; secondly, it was contended that the

manner of execution of the Order was so oppressive and unfair as to be

disproportionate to any legitimate aim sought thereby.

 

85.     As to the former contention, the Government reject the

suggestion that it was either unnecessary or oppresive that an Anton

Piller Order should have been granted in the case of the present

applicant.  While, by comparison with the plaintiffs' business, the

applicant's business may have been small, there is no doubt that the

applicant was carrying on a substantial trade in pirate videos:  no

fewer than 377 films were seized by the plaintiffs as pirated copies.

As was noted by Slade L.J. (Judgment of Court of Appeal p. 27 A-B)

even on the applicant's own admission, he and his company had been

dealing with a substantial volume of pirated copyright material.

Moreover, the extent of his dishonest business was such as to prompt

the applicant to take elaborate steps to avoid detection.

 

86.     It is submitted that the use of an Anton Piller Order in the

case of the applicant was both appropriate and necessary to protect

the rights of the plaintiffs; there was overwhelming evidence of video

piracy on the part of the applicant and his company; the business was

a substantial one with consequent loss and damage to the plaintiffs;

and there existed a very strong likelihood that, if prior notice had

been given to the applicant, he would have destroyed or suppressed

material evidence and thereby deprived the plaintiffs of their ability

to establish and enforce their property rights.

 

87.     As to the manner of execution of the Order, it is important to

note that both the judge at first instance in the proceedings and

the Court of Appeal expressly found that, in executing the Order, the

plaintiffs' solicitors had behaved with complete propriety:  having

investigated the evidence in detail, both the Courts rejected as

unfounded the applicant's complaints concerning the search of the

premises, the removal of documents and materials from the premises and

the handling and use by the plaintiffs' solicitors of those documents

and materials thereafter.

 

88.     The concern expressed by the domestic courts related solely to

the fact of the simultaneous execution of a search warrant by the Bath

police which it was considered effectively deprived the applicant of

an opportunity to raise any objection he might have had to the entry

of the plaintiffs' solicitors, and also made the search of the

premises more oppressive than it might otherwise have been.  In this

regard, it is important to observe that the  Court of Appeal accepted

that, where there was evidence that pirate films cassettes were being

sold alongside pornographic film cassettes, it might well be necessary

for the police to carry out a search at or about the time when an

Anton Piller Order was executed, since valuable evidence might

otherwise disappear or be destroyed in the interim.  The concern of the

Court related to the fact that the Order and the search warrant in the

present case were executed simultaneously and that the solicitors

might have been thought to be associated with the police officers

carrying out a search for pornographic films under a validly issued

search warrant.

 

89.     In the submission of the respondent Government the fact that

the Order was executed simultaneously with the search warrant, rather

than immediately before, or after the search warrant, was not such as

to render the execution of the Order disproportionate to the

legitimate aim pursued.

 

90.     They place considerable reliance on the judgments of the judge

at first instance and the Court of Appeal in the domestic proceedings.

The two Courts had the advantage of being able to examine and assess

the sworn evidence of those who were parties to the events on the day

on which the Order was executed:  in addition the judge at first

instance was able to hear under cross-examination and assess the oral

testimony of the witnesses themselves, including the applicant.  The

Courts were accordingly especially well placed to form a judgment both

as to the conduct of those executing the Order and as to the degree of

hardship to which the applicant was in fact subjected by the

simultaneous execution of the Order and search warrant.

 

91.     The judgments of the domestic courts are important in that,

having examined the evidence in detail, neither the judge at first

instance nor the Court of Appeal was able to conclude that the

applicant had suffered any injustice by reason of what had occurred;

on the contrary, the Court of Appeal made clear that in their view no

injustice had been done to the applicant by reason of the simultaneous

execution of the Order and the warrant.  What is also clear from the

judgments is that, if the Court of Appeal had been satisfied that the

circumstances of the execution of the Order simultaneously with the

warrant had been so oppresive as to work an injustice on the applicant

or his company, the Court would have declined to restore the Order.

 

92.     In the submission of the Government, the manner of execution

of the Order, as described in the judgments in the domestic

proceedings and as amplified in the Government's answers to the

Commission's questions and in the letters submitted in the

proceedings, from the Bath police and the plaintiffs' solicitors, was

not such as to render the interference with the applicant's rights

under Article 8 para. 1 disproportionate to the legitimate aim sought,

or to take the execution of the Order outside the protection of

paragraph 2 of Article 8 of the Convention.

 

IV.     OPINION OF THE COMMISSION

 

A.      Point at issue

 

93.     The point at issue in the present case is whether the

safeguards contained in the Order and the circumstances of its

execution were in conformity with Article 8 (Art. 8) of the Convention.

 

94.     Article 8 (Art. 8) of the Convention provides:

 

        "1.  Everyone has the right to respect for his private and

        family life, his home and his correspondence.

 

        2.  There shall be no interference by a public authority

        with the exercise of this right except such as is in

        accordance with the law and is necessary in a democratic

        society in the interests of national security, public safety

        or the economic well-being of the country, for the prevention

        of disorder or crime, for the protection of health or morals,

        or for the protection of the rights and freedoms of others."

 

95.     The Commission must therefore determine first whether the

Order and its execution constituted an interference with the

applicant's right to respect for his private life, his home and his

correspondence and, if so, whether such an interference was in

accordance with the law and necessary in a democratic society for one

of the purposes specified in Article 8 para. 2 (Art. 8-2) of the Convention.

 

B.      Was there an interference with the applicant's rights

        guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention?

 

96.     The applicant complains of the search under the Order of the

house which he occupied in part as his home and which was otherwise

his business premises and those of his company.  In the course of the

search it is clear that his correspondence, including personal

correspondence, was examined, and in certain cases taken, by the

plaintiffs' solicitors.  The search included the applicant's bedroom

on the premises which it has not been disputed was occupied by the

applicant as his home.  In sum, therefore, although directed against

the applicant's, and his company's, business activities, the search

under the Order impinged directly on the applicant's private life and

the private sphere of items and associations which are the attributes

of a home.  This sphere clearly includes the applicant's private papers

whether in the form of letters or other material (No. 6794/74, Dec.

10.12.75, D.R. 3 p. 104).  However, the Commission leaves open the

question whether these materials constituted correspondence, within

the meaning of Article 8 (Art. 8) of the Convention, as the interference

therewith anyway falls within the private life sphere.

 

97.     Under the terms of the Order the applicant was obliged, on

pain of contempt of court, to comply with its terms and allow the

search to take place unless he considered that the whole basis of the

action for breach of copyright against him was so insubstantial that

he could persuade the court that the Order should never have been

granted.  The respondent Government have submitted that the Order was

therefore voluntary and that the applicant could have refused to allow

the search to take place.  They stress that in such circumstances the

plaintiffs' solicitors would not have been able to force entry onto

the premises and the respondent Government point out that in this

respect the Order differed fundamentally from the search warrant which

the police served contemporaneously.

 

98.     Nevertheless, it is clear that the Order instructed the

applicant "to permit the plaintiffs' representatives to enter his

premises forthwith" and that this instruction was expressly embodied

in a high court order.  A failure to obey the Order by refusing entry

would have been a breach of a court order, albeit that the applicant

might have been able to justify such a breach to the court (cf. para.

25 above).  The Commission considers that, for the purposes of

deciding whether or not the search under the Order constituted an

interference with the applicant's rights protected by Article 8 para.

1 (Art. 8-1) of the Convention, compliance with the Order cannot be regarded as

voluntary.  On the contrary, the Order expressly instructed the

applicant to permit a search, which he would normally have been at

liberty to refuse, had it not been for the existance of the Order.

 

99.     The Order gave the plaintiffs the power unannounced and

without notice to seek entry to the premises, part of which the

applicant apparently occupied as his home although the plaintiffs may

have been unaware of this.  The plaintiffs were empowered to inspect

all documents and other material there and to remove such material as

appeared relevant to the applicant's alleged pirate video recording.

In addition, entry for the search was gained at the same moment as the

police served a search warrant on the applicant and the search under

the Order was conducted while the police were executing their search

warrant.  In these circumstances the Commission finds that there was

an interference with the applicant's right to respect for his private

life and home within the meaning of Article 8 para. 1 (Art. 8-1) of the

Convention which must be examined in the light of Article 8 para. 2

(Art. 8-2) thereof.

 

C.      Was the interference justified under Article 8 para. 2

        (Art. 8-2) of the Convention?

 

        (a) In accordance with the law

 

100.    The Commission must examine whether this interference was

justified under Article 8 para. 2 (Art. 8-2) of the Convention.  The Commission

must consider first whether the interference in question was "in

accordance with the law", which is the primary condition contained in

Article 8 para. 2 (Art. 8-2).  It recalls that the respondent Government have

indicated that they are not privy at first hand to the details of the

execution and operation of the search under the Order.  State

responsibility for the operation of that search arises by virtue of

the decision of the High Court to grant the Order in the terms which

it contained, which Order authorised the plaintiffs to enter the

premises and ordered him to allow them to do so and to

search for, and seize, material considered relevant to their action

against him.  It is also engaged by the protection which domestic law

provided for the applicant when the search was actually conducted.

 

101.    The respondent Government submit that the legal basis for the

Order was Section 45 Supreme Court of Judicature (Consolidation) Act

1925, which gives the High Court a general power to grant an

injunction by an interlocutory order in all cases in which it appears

to the court to be just or convenient to do so.  Following the Court

of Appeal's decision in Anton Piller KG v.  Manufacturing Processes Ltd

(1976) 1 Ch. 55 this power may be exercised on an ex parte application

where it is essential to order inspection of evidence to ensure

justice between the parties and where notice to the defendant would be

really likely to result in the evidence being destroyed, or hidden,

and where inspection would do no real harm to the defendant.  Hence

the general power to make an Anton Piller Order arises from the

interpretation and application of the power granted by Section 45

Supreme Court of Judicature (Consolidation) Act 1925 as developed by

case law.

 

102.    It is well established that the requirement of lawfulness

imposed by, inter alia, Article 8 para. 2 (Art. 8-2) of the Convention may be

satisfied by common law, just as it may be by a statute, provided that

the law in question is sufficiently accessible and foreseeable to

allow an individual to properly respond to its requirements (Eur.

Court H.R. Sunday Times judgment of 26 April 1979, Series A No. 30

para. 47).  The requirement that an interference be in accordance with

the law, extends, however, to the question whether the particular

events complained of were in accordance with the law.

 

103.    The obligation to submit to the search was imposed by the

specific terms of the Order.  These were determined by a High Court

judge on the plaintiffs' application in which an order was sought to

require the applicant to allow the premises to be searched and

relevant documents to be seized.  The Order circumscribed the extent

of the plaintiffs' powers to implement the search.  In these

circumstances the Commission finds that the requirement that the

interference complained of had its basis in domestic law is satisfied

in the case of the Order.  The Commission must also examine whether

the legal basis for the Order satisfied the additional requirement of

'showing respect' for the applicant's private life and home.

 

104.    In this respect a significant aspect of the Order was that it

was sought ex parte, so that the applicant was not on notice of the

fact that the plaintiffs wished to obtain such an order and was not

present in court when its terms were decided upon by the judge on the

plaintiffs' application.  This ex parte nature of the Order is an

inherent, and in the respondent Government's submission essential,

aspect of Anton Piller Orders, since such orders are granted in

circumstances where there is a real and imminent risk that evidence

would be destroyed, and the interests of justice frustrated, if the

element of surprise was absent.

 

105.    The Commission recognises that, in cases where evidence may

otherwise be suppressed, there may be no alternative to obtaining an

ex parte order of which the defendant has no notice if an effective

search is to be conducted.  This practice is also reflected in the

legal systems of many Member States of the Council of Europe.  In the

present case there were strong reasons, accepted by the domestic

courts, to suggest that an ex parte application was the only

potentially successful approach for the plaintiffs.  In addition,

there were various remedies open to the applicant with which he could

challenge any failure by the plaintiffs and their solicitors to comply

with the terms of the Order.  In these circumstances. the Commission

finds that the legal basis for the Order did not fail to show respect

for the applicant's private life and his home.

 

106.    The requirement imposed by the words "in accordance with the

law" is also one to comply with national law.  In the present case it

would appear from the judgments of the domestic courts that there

could be doubt as to whether certain aspects of the search under the

Order had in fact been so conducted.  In particular the domestic

courts criticised the combined execution of the Order with the police

search and the fact that this aspect of the planned search was

insufficiently brought to the court's attention when the Order was

sought and granted.  The applicant has not contended before the

Commission that this requirement of Article 8 para. 2 (Art. 8-2) of the

Convention was not satisfied.  In this respect the Commission notes

that this question was considered by the domestic courts which granted

the applicant specific relief, by relieving him of the obligation,

which he had not fulfilled, to have filed certain evidence.  In the same

proceedings the domestic courts rejected certain other complaints

which the applicant had made.  In these circumstances the Commission

finds that the requirement that the interference was in accordance with

the law was satisfied in the present case.

 

        (b) Necessary in a democratic society for a legitimate aim

 

107.    It is clear that the interference with the applicant's rights

by virtue of the Order arose in the context of proceedings brought by

the plaintiffs to defend their copyright from unauthorised

infringement.  This aim was legitimate and recognised by Article 8

para. 2 (Art. 8-2) as an aim "for the protection of the rights of others".

 

108.    In deciding whether the interference was necessary in a

democratic society the Commission must examine whether the

interference was proportionate to this legitimate aim.  This question

involves an assessment, in particular of the way in which the

interference arose in practice, and hence of the way in which the

Order was executed in the light of the safeguards which it contained.

 

109.    The Commission must therefore consider whether the

interference with the applicant's rights was proportionate to the

legitimate aim pursued.  In so doing it recalls that the test of

necessity of which this assessment forms part is one which corresponds

to the existance of a pressing social need for the interference in

question (Sunday Times judgment of 26 April 1979, Series A No. 30,

para. 59).  In making this assessment the Commission is called upon to

examine the domestic legal provisions concerned and the way in which

they were applied in the present case.

 

110.    In view of the potentially serious interference with the

applicant's right to respect for his home and private life which the

search under the Order constituted, the Commission must examine the

safeguards which English law provided both in general, and during the

actual search of the premises, in order to decide whether

the actual measures taken were proportionate to the legitimate aim.

 

These safeguards are of two, linked, types.  First, the conditions

which restricted and determined the scope of the power granted under

the Order and its operation, and, secondly, the remedies which were

available to the applicant in respect of any failure to respect those

conditions.

 

111.    In the present case these safeguards are reflected by the

fact that the Order was granted by a judge, the fact that the

plaintiffs were required to provide evidence of allegations of a

serious interference with their rights by virtue of the unauthorised

copying of their films, as well as by the detailed restrictions

imposed on the operation of the search under the Order.  The search

authorised by the Order was limited as to time as well as in the

number of persons authorised to take part in it;  the purposes for

which the material taken could be used were also specified.  In

addition, the plaintiffs' solicitors were required to inform the

applicant of the implications of the Order and of his right to obtain

legal advice before the search which the Order authorised took place

and the applicant therefore had the benefit of legal advice both

before, and while, the search was conducted.

 

112.    These safeguards in the Order provided the applicant with

certain specific remedies in the event that he considered that his

rights were infringed by the conduct of the search.  These were:-

 

-       If he considered that the Order was improperly obtained he

could apply to have it set aside.  This course he did adopt, though

with limited success.  Although the Courts were critical of the fact

that full information  had not been given when the Order was sought,

this did not invalidate the Order, but the applicant was relieved of

his failure to comply immediately with its terms;

 

-       If he considered that there was a breach by the plaintiffs of

the undertakings given by them on applying for the Order (see para.

36) he could call the attention of the Court to the breach.  Such a

breach would have constituted a contempt of court.  The applicant did

indeed claim that a contempt had taken place, but the court did not

agree;

 

-       If entry to the premises was obtained by a trick and without

real consent, or if after entry a request to leave the premises was

not complied with, an action for trespass could lie, as the judge at

first instance pointed out.  It does not appear that if illegality had

been established the national courts would not have provided a remedy.

As was said in a leading case on the subject of private righs, "By the

laws of England, every invasion of private property, be it ever so

minute, is a trespass" (Entick v.  Carrington (1765) 19 State Tr 1029);

 

-       If documents were taken by the plaintiff's solicitors without

justification under the Order again an action for trespass would lie.

In this respect the Commission recalls that it has found that domestic

remedies were not exhausted in respect of the alleged seizure of

private documents not covered by the Order (see Appendix II,

decision on admissibility page 59);

 

-       If he suffered loss by virtue of the search he could claim

damages under the undertaking referred to in para. 36 of the Report at

the outcome of the substantive proceedings;

 

-       If he considered that the plaintiffs' solicitors had acted

improperly as officers of the court he could have sought disciplinary

proceedings against them.

 

113.    The Commission must also consider the operation of these

safeguards in practice, in order to assess the proportionality of the

interference in question.  Certain aspects of the search gave rise to

specific criticism by the domestic courts in the proceedings which the

applicant did commence.  These included that the judge who granted the

Order should have been more precisely informed of the scope of the

proposed cooperation with the police and that when they entered the

premises the plaintiffs' solicitors failed adequately to distinguish

themselves from the police who were conducting the search under the

search warrant.  There criticisms were the reason for relieving the

applicant of his failure to comply with certain provisions of the

Order.  Nevertheless the courts also noted that various of the

applicant's other allegations, such as that he was stunned and

overwhelmed by the scale of the searches, were not substantiated on

the evidence.

 

114.    The domestic courts also suggested that it might have been

preferable had the search under the Order not begun until the police

search had finished.  It is true that such an approach would have

assisted the applicant in keeping control of the situation and in

supervising the searches, but it would certainly have prolonged the

interference and would have increased the risk of the destruction or

disappearance of evidence.  Furthermore, neither the applicant nor the

representative of the firm of solicitors representing him requested

the plaintiffs' solicitors to defer the search under the Order in this

way and there is nothing to show that such a request could properly

have been refused in view of the limits imposed by the Order on the

number of persons who should implement the search under it.

 

115.    The Commission's task in assessing the proportionality of the

interference with the applicant's rights is supervisory.  Unlike the

domestic courts, it has not had the benefit of hearing evidence at

first hand from those who witnessed the search.  Neverthless it

emerges clearly from the judgments of the domestic courts that there

were justifiable grounds to expect that evidence might be destroyed or

otherwise disappear if the searches under the search warrant and the

Order were not coordinated.

 

116.    In addition, the applicant was advised in relation to the

search under the Order by a representative of the firm of solicitors

advising him and it is established that that search did not begin

until the applicant had been so advised and had accepted service of

the proceedings.  Thereafter, a variety of remedies were available to

the applicant in respect of any alleged improprieties in the conduct

of the search, although the applicant has failed to take advantage of

certain of them.  In these circumstances, and in view of the various

safeguards which regulated the scope of the Order and which could

remedy a failure to comply with it, the Commission finds that the

interference with the applicant's private life and home by virtue of

the search under the Order was not disproportionate to the legitimate

aim which it pursued.  It follows that the interference was necessary

in a democratic society for the protection of the rights of others

within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

 

117.    Conclusion

 

        The Commission concludes by six votes to five that there has

been no violation of Article 8 (Art. 8) of the Convention, in that the

safeguards contained in the Order and the circumstances of its

execution were in conformity with this provision.

 

Secretary to the Commission           President of the Commission

 

(H. C. KRÜGER)                         (C. A. NØRGAARD)

 

Dissenting opinion of Mr.  Frowein joined by

MM. Trechsel, Busuttil, Schermers and Vandenberghe

 

1.      Although we share the approach of the majority to the present

case, we cannot share its conclusion.

 

2.      We agree that there was an interference with the applicant's

right to respect for his private life and home by virtue of the search

under the Anton Piller Order ('the Order'), and that the

proportionality of that interference must be assessed by reference,

inter alia, to the safeguards against abuse which the Order contained

and the remedies which flowed from those safeguards.

 

        We disagree, however, that it is established that the

interference was 'in accordance with the law' and in the assessment of

the proportionality of the interference.

 

3.      The requirement that the interference must be in accordance

with the law is especially important where a search is authorised by a

court following an ex parte application.  That Anton Piller Orders are

sufficiently clearly known in English law is not in doubt.  However,

there is real doubt as to whether the Order in the present case was

implemented in accordance with domestic law and was in fact obeyed by

the plaintiffs' solicitors.  They failed to inform the judge who

granted the Order of the scope of their planned co-operation with the

police and they conducted the search under the Order contemporaneously

with the police search.  As a result, 16 people searched the premises

although under the terms of the Order the numbers involved were

expressly limited to five, a point which gave rise to substantial

criticism by the domestic courts.  It is doubtful, therefore, whether

the Order was obeyed by the plaintiffs.

 

4.      We note that under English law the search at issue is carried

out by solicitors as officers of the court.  Since internal law must

contain sufficient safeguards to be justified under Article 8 para. 2

of the Convention, it would seem to be of great importance that a

judge can in effect supervise the execution of the search.  This was

not really possible, as became clear in the proceedings in this case.

 

5.      Furthermore, these factors illustrate why we also conclude

that the safeguards provided in the Order and by the general law were

inadequate and the interference was disproportionate to the legitimate aim

of protecting the plaintiffs' copyright.  The following aspects, in

particular, may be mentioned:-

 

-       The judge who granted the Order was not informed of the scope

of the proposed co-operation with the police although this was clearly

a settled plan when the Order was sought, as is shown by the

plaintiffs' solicitors' letter to the applicant of 27 August 1981

(para. 44).  The judge at first instance described this as the real

vice of the case.  He added that, had the judge granting the Order

been fully informed, he would probably have taken steps to ensure that

further safeguards were provided for the applicant.  The Court of

Appeal also criticised this failure to inform the judge when the Order

was sought.  It recognised that it was absolutely essential for the

court dealing with the matter to be clearly informed of this.

 

-       The plaintiffs' solicitors were able to enter the premises and

be taken for members of the police party until entry had been secured

notwithstanding the entirely different legal basis for their search.

The judge at first instance found as a fact that they were taken for

the police.  The Court of Appeal considered that it was most

undesirable that the parties to a civil search should seem to be the

hangers on of a squad of police officers carrying out a search under a

search warrant.

 

-       The contemporaneous search resulted in 16 people searching the

premises, and not the maximum of 5 specified in the Order.  It has not

been convincingly suggested why a contemporaneous search was

necessary, rather than consecutive searches which would have been far

easier for the applicant to supervise.  In the result the supervision

of the search under the Order must have been very substantially

hampered and the safeguards of the Order seriously undermined by this

approach.

 

-       This lack of practical control over the search is also

illustrated by the fact that no inventory was prepared during the

search under the Order and agreed or initialled by the applicant at

that time;  furthermore, apparently further documents were examined at

the police station in the absence of the applicant.

 

6.      As a result of these factors the search under the Order was

considerably more onerous than that which was outlined to, and

authorised by, the judge who granted the Order.  The safeguards were

not sufficient in principle or in practice to ensure respect for the

applicant's private life and home in the light of the way in which the

Order was implemented and the search was actually conducted.  In our

opinion the search was not, therefore, proportionate to the legitimate

aim pursued, and Article 8 of the Convention was violated.

 

Separate Opinion of Mr.  Kiernan(1)

 

        I agree with the reasons and conclusion of the Commission in

its Opinion that there was no violation of Article 8 of the

Convention.

________________

(1) See footnote to page 4

 

Concurring Opinion of Sir Basil Hall

 

        While I share the opinion of the majority of the Commission

that there has been no violation of Article 8 in this case, my reasons

for reaching that conclusion differ.

 

        A company controlled by the applicant was engaged in premises

in Bath, Somerset in a business which involved the making of video

cassettes in breach of copyright.  The Anton Piller Order ('the

Order') against the applicant and the company was directed towards the

removal of unlicensed copies of film and documents relating to the

acquisition, supply and disposal of unlicensed copies.

 

        The premises at Bath were used for both business and

residential purposes.  In so far as the implementation of the Order

would involve entry into the premises used by the applicant and his

company, that was because the premises were used for business purposes

not because they were his home.  Interference with private life was

not necessitated by the Order.  Interference with private

correspondence was not authorised except to the extent that the

searching for "documents which appear to relate to the acquisition,

supply or disposal" of unlicensed copies of film might involve the

examination of correspondence to establish whether it related to these

or to other matters.  The removal of correspondence relating to those

matters was authorised but not the removal of any other

correspondence and in any case the applicant's complaint in relation

to the removal of his private correspondence has been held

inadmissible by the Commission.  In so far as interference with

correspondence was authorised it was plainly justified under Article 8

para. 2 of the Convention.

 

        Accordingly, the making of the Order did not constitute a

violation of Article 8.

 

        It may, however, be contended that whether or not the making

of the order constituted a violation of Article 8, interference with

the applicant's rights under Article 8 took place when the plaintiffs

in the action for breach of copyright entered the premises at Bath in

implementation of the Order.

 

        If so, that is not a matter for which the respondent State has

responsibility under the Convention unless the safeguards in relation

to the implementation of the Order were so inadequate or ineffective

that they did not ensure that those operating under the Order did not

exceed their authority.

 

        The State is not, I consider, required to have an official of

the court present to supervise the search.  It is necessary to consider

whether the safeguards in the Order itself and the remedies which the

applicant could have used were adequate to control the activities of

those acting under the Order.

 

        The safeguards in the Order are set out in paragraphs 34 and 36

of the Report.  The remedies available to the applicant are described

in paragraph 112.

 

        In my opinion the safeguards and remedies taken together

provide a reasonable and sufficient control protecting the right

conferred by Article 8 and the State has accordingly discharged

its obligations under that Article.

 

        I conclude therefore that even if those implementing the

Order had behaved in a manner inconsistent with the provisions of

Article 8, this is not a matter for which the respondent State has a

responsiblity.

 

        If I am wrong in the view which I have expressed above, I

would agree with the view of the majority of the Commission that such

interference as there was with the applicant's private life and home

was not disproportionate to the legitimate aim which the search under

the Order pursued.

 

APPENDIX I

 

History of the proceedings

 

                Item                              Date

__________________________________________________________________

 

Examination of the admissibility

 

Introduction of the application              11 Otober 1982

 

Registration of the application               1 July 1983

 

Preliminary examination by the

Rapporteur (Rule 40 of the Rules

of Procedure)                                   July 1983

 

Commission's first examination of

the admissibility of the application

and decision to communicate the

application to the respondent Government

and invite them, pursuant to Rule 42

para. 2 (b) of the Rules of Procedure,

to submit written observations on its

admissibility and merits                     14 October 1983

 

Observations of the respondent

Government                                   26 January 1984

 

Observations of the applicant in reply        2 July 1984

 

Further observations of the respondent

Government                                   28 September 1984

 

Commission's deliberations and decision

to invite the parties to make oral

submissions on admissibility and merits

pursuant to Rule 42 para. 3 (b) of the

Rules of Procedure                           11 October 1984

 

Hearing of the parties pursuant to

Rule 42 para. 3 (b) of the Rules of

Procedure                                    12 March 1985

 

Deliberations and decision on

admissibility                                12 and 14 March 1985

 

Examination of the merits

 

Commission's first deliberations on

the merits; respondent Government

invited to submit information pursuant

to Rule 45 para. 2 of the Rules of

Procedure and informed that the Commission

was at their disposal with a view to

securing a friendly settlement pursuant

to Article 28 para. (b) of the Convention    14 March 1985

 

Commission's decision on admissibility

despatched to the parties                    23 May 1985

 

Information submitted by the respondent

Government                                    3 July 1985

 

Applicant's comments in reply                19 August 1985

 

Commission's second deliberations

on the merits and decision to invite the

parties to submit such further

observations on the merits as they

may wish                                     12 October 1985

 

Respondent Government's challenge to

applicant's further submissions of

13 August 1985 and request for

Commission's ruling                           6 January 1986

 

Applicant appoints representatives           31 January 1986

 

Applicant's representatives file

submissions                                   5 March 1986

 

Commission's further deliberations

on the merits and procedural decisions       13 March 1986

 

Respondent Government's further

submissions                                  21 May 1986

 

Applicant's observations in reply            16 July 1986

 

Commission's further deliberations

on the merits                                11 October 1986

 

Commission's further deliberations

on the merits                                 7 March 1987

 

Commission's further deliberations

on the merits                                 6 and 8 October 1987

 

Commission's further deliberations

on the merits and vote                       12 October 1987

 

Adoption of the present Report               14 October 1987

 

Full & Egal Universal Law Academy