HL Deb 28 July 1981 vol 423 cc663-4

10 After Clause 71, insert the following new clause:

"Withdrawal of privilege against incrimination of self or spouse in certain proceedings Other provisions

(1) In any proceedings to which this subsection applies a person shall not be excused, by reason that to do so would tend to expose that person, or his or her spouse, to proceedings for a related offence or for the recovery of a related penalty—

  1. (a) from answering any question put to that person in the first-mentioned proceedings; or
  2. (b) from complying with any order made in those proceedings.

(2) Subsection (1) applies to the following civil proceedings in the High Court, namely—

  1. (a) proceedings for infringement of rights pertaining to any intellectual property or for passing off;
  2. (b) proceedings brought to obtain disclosure of information relating to any infringement of such rights or to any passing off; and
  3. (c) proceedings brought to prevent any apprehended infringement of such rights or any apprehended passing off.

(3) Subject to subsection (4), no statement or admission made by a person—

  1. (a) in answering a question put to him in any proceedings to which subsection (1) applies; or
  2. (b) in complying with any order made in any such proceedings,
shall, in proceedings for any related offence or for the recovery of any related penalty be admissible in evidence against that person or (unless they married after the making of the statement or admission) against the spouse of that person.

(4) Nothing in subsection (3) shall render any statement or admission made by a person as there mentioned inadmissible in evidence against that person in proceedings for perjury or contempt of court.

(5) In this section intellectual property" means any patent, trade mark, copyright, registered design, technical or commercial information or other intellectual property; related offence", in relation to any proceedings to which subsection (1) applies, means—

  1. (a) in the case of proceedings within subsection (2)(a) or (b)—
    1. (i) any offence committed by or in the course of the infringement or passing off to which those proceedings relate; or
    2. (ii) any offence not within sub-paragraph (i) committed in connection with that infringement or passing off, being an offence involving fraud or dishonesty;
  2. (b) in the case of proceedings within subsection (2)(c), any offence revealed by the facts on which the plaintiff relies in those proceedings;
related penalty", in relation to any proceedings to which subsection (1) applies means—
  1. (a) in the case of proceedings within subsection (2)(a) or (b), any penalty incurred in 664 respect of anything done or omitted in connection with the infringement or passing off to which those proceedings relate;
  2. (b) in the case of proceedings within subsection (2)(c), any penalty incurred in respect of any act or omission revealed by the facts on which the plaintiff relies in those proceedings.

(6) Any reference in this section to civil proceedings in the High Court of any description includes a reference to proceedings on appeal arising out of civil proceedings in the High Court of that description.".

The Lord Chancellor

My Lords, I beg to move that the House doth agree with the Commons in their Amendment No. 10. This is a very esoteric subject, which revolves around a most marvellous invention of a member of the Bar, called the Anton Piller order, which—if I may try to use more explicit language—is designed to save those reputable firms which are engaged in the production of video recordings from criminal and other breaches of their copyright and intellectual property by the use of illicit tape recordings.

I need not go into the details, but under an ordinary Anton Piller order the alleged infringer is made to answer questions. Very often, perhaps in most cases, an ingenious person on the other side of the battlefield discovered that he could be excused from answering these awkward questions by pleading what in America would be called the Fifth Amendment: that he might expose himself to criminal proceedings if he answered the questions in a particular way. That caused a great rumpus because the victims of the practice, which is totally illicit, then complained that the whole protection of the Anton Piller order would be removed from them, and up to a point that was right. To quote Mr. Gladstone: The resources of civilisation have not wholly been exhausted ' and the amendment which, as I say, is somewhat esoteric, seeks to remedy the situation in an evenhanded way, by on the one hand requiring defendants in civil proceedings concerned with copyright and the like to answer the questions, whether or not incriminating, and, on the other hand, making any answers so given inadmissible in any criminal proceedings which might be instituted for related offences. This amendment was put together with commendable speed after consulting all the interested parties and I understand that it has general support. It is slightly modelled—after all, plagiarism and excision are the true marks of the great draftsman—on Section 31(1) of the Theft Act 1968, but I think it is unobjectionable and I hope the House will find it so, too. I beg to move that this House doth agree with the Commons on the said amendment.

Moved, That the House doth agree with the Commons in the said amendment.—(The Lord Chancellor.)

Lord Elwyn-Jones

My Lords, I have no criticism to make of this highly esoteric field where intellectual property, I see, comes to the foreground, and one needs a good deal of that to follow the Anton Piller doctrine.

On Question, Motion agreed to.