Aspect Capital Ltd v Christensen [2010] EWHC 744 (Ch)

Claim No HC09C04045[2010] EWHC 744 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of JusticeDate 29th March 2010
The Strand
London WC2A 2LL
Before
MR JUSTICE LEWISON
Between
Hugh ChristensenRespondent/Defendant
(Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr Robert Howe (instructed by Jones Day) appeared for Applicant/Claimant.Ms Christina Michalos (instructed by Royds Solicitors) appeared for Respondent/Defendant.
Judgment
[1]MR JUSTICE LEWISON: Mr Hugh Christensen was employed as a researcher in the London office of Aspect Capital Limited from May 2008 until his dismissal in October 2009. Aspect Capital is an investment manager regulated by the FSA. In August 2009, it came to light that Mr Christensen had been carrying on personal account trading, in breach both of company policy and FSA requirements. When Mr Christensen was confronted with these allegations, he dishonestly denied them. He now accepts that he lied.[2]To make matters worse, in support of his lies he relied on what has politely been called a doctored letter from his brokers. Not to mince words, it was a forgery which Mr Christensen himself forged. He was suspended on full pay on 10 September 2009 and then summarily dismissed for gross misconduct following a disciplinary meeting on 2 October.[3]Mr Christensen disputes the grounds of his dismissal, but that is not relevant for present purposes.[4]Following his dismissal, Aspect engaged a forensic computer expert to examine his computer. This was a matter of routine. The expert concluded, rightly or wrongly, that Mr Christensen had uploaded large quantities of confidential data and information from Aspect's computer system to various internet accounts under his control. In the light of this discovery, on 26 October 2009, Aspect applied to Mr Justice Warren for a search and seizure order. The order was executed on the following day, the 27th.[5]The search party was to consist of a supervising solicitor, Ms Jefferies, Aspect's solicitors, a computer specialist and Aspect's senior IT systems administrator. The order contained a number of obligations imposed on Mr Christensen. Each of these obligations was an order of the court. They included:(1) to immediately inform the claimant's solicitors of any listed documents in the defendant's possession, power, custody or control. The listed documents were defined in the order;(2) to immediately inform the claimant's solicitors of the location of any listed items which were in the defendant's possession, power, custody or control. The listed items were also defined in the order;(3) to immediately inform the claimant's solicitors of the location of any listed documents which have been but are no longer in the defendant's possession, power, custody or control;(4) to immediately inform the claimant's solicitors of the location of any computers, storage facilities or other electronic data storage device in which listed documents are or were held, including details of names and file locations of such listed documents;(5) to immediately inform the claimant's solicitors of what data or information were contained in the uploads from the claimant's system. The uploads were also defined in the order;(6) to immediately inform the claimant's solicitors of what has become of the data or information in the uploads and where all copies of that data or information or any of it has been or is now located;(7) to immediately inform the claimant's solicitors of the account names and pass codes for any email accounts held, used or controlled by the defendant, including but not limited to hughchristensen@hotmail.com and any other information necessary to enable access to those accounts;(8) to swear and serve an affidavit setting out the information required in clause 7 of the search order within four working days of being served with the order;(9) to immediately or as soon as reasonably practicable provide the claimant's solicitors with: (i) any listed documents which are in the defendant's possession or under his control; (ii) any listed items together with any other electronic storage medium which are in his possession or under his control;(10) to immediately give the search party effective access to the computers on and all other electronic data storage devices situated on or accessible from the premises, including email accounts and files, with all necessary passwords and/or software and/or other information to enable the computers to be accessed, searched and copied. If they contain any listed items, the defendant must cause the listed items to be displayed and/or printed out so they can be read and copied;(11) to supply the computer specialist with all passwords or pass phrases or other information, assistance or devices reasonably required by the computer specialist in order to make such copies or thereafter gain access to data as defined in paragraph 25 of the order and to decrypt all such data on the computers and data storage devices;(12) to refrain from, save with the permission of and in the presence of a supervising solicitor, accessing any electronic data processing system or data within the control of the defendant before copies of the data had been taken by the computer specialist. Data for this purpose included data stored on site and data stored remotely and included logical, physical and remote access;(13) except for the purposes of obtaining legal advice, to refrain from directly or indirectly informing anyone of these proceedings or of the contents of the search order or warning anyone that proceedings have been or may be brought against the defendant by the claimant until 4.30 pm on the return date or further order of the court;(14) until 4.30 on the return date, to refrain from destroying, tampering with, cancelling or parting with possession, custody or control of the listed items, otherwise than in accordance with the terms of the search order.[6]The order was endorsed with a penal notice, explaining that if Mr Christensen disobeyed the order, he was liable to be imprisoned or fined. Aspect allege that Mr Christensen has committed breaches of this order and is, therefore, in contempt of court. Mr Christensen accepts that this is the case. He accepts that he lied to the search party about whether he had confidential information belonging to Aspect, that he lied about the contents of the uploads, that he failed to reveal at least one computer hard drive containing back-up material and that the affidavit that he swore in compliance with the order was untrue to his knowledge and that he has therefore committed perjury.[7]However, Aspect are not prepared to accept the limitations, qualifications and explanations that Mr Christensen gives for his admitted breaches. I have therefore held the equivalent of a Newton hearing in order to determine the extent and gravity of the breaches (see R v Newton (1982) 77 Cr App Rep 13).[8]In so doing, I have applied the criminal standard of proof, that is to say, proof beyond reasonable doubt. The burden of proving the relevant facts lies on Aspect. In other words, if I conclude that Mr Christensen's explanations are or might be true, I must accept them. Much therefore depends on the credibility of Mr Christensen's evidence given on this application, both on affidavit and orally in court.[9]Mr Christensen is a self-confessed liar, forger and perjurer. It does not of course follow that because he has lied in the past, he has been lying to this court in response to this application. In this case, Mr Christensen says that he initially lied out of panic, and then persisted in the lies because he was entrapped in the initial lie. In considering whether I can accept his evidence, I have taken into account the fact that Mr Christensen was, at least before the events that led to his dismissal, a man of good character. His character is the subject of positive evidence from a former colleague.[10]What follows are my findings of fact. The supervising solicitor arrived at Mr Christensen's flat at about 8.10 am. Mr Christensen was not yet dressed. The supervising solicitor introduced herself and explained why she was there. She said that Mr Christensen did not have to allow the search party to enter, but that if he did not, that might be a contempt of court, which could be punished by a fine or imprisonment. She told Mr Christensen he must not interfere with anything covered by the order. Her recollection in oral evidence was that the phrase she used was that Mr Christensen must not touch anything. Mr Christensen asked if he could get dressed. The supervising solicitor said that he could, but that she would have to enter the flat so that she could report to the court that nothing had been interfered with. Again, her recollection was that she used the phrase "don't touch anything".[11]She allowed Mr Christensen to get dressed. She remained in the flat while this took place. She noticed that two computer screens were on. One was displaying an inbox of emails. She could not recall what the other was displaying. Mr Christensen said he wanted to send an email. The supervising solicitor, Ms Jefferies, said this was not permitted. Mr Christensen then leaned forward, switched off both computer screens and pulled the plug out of the back of the computer base unit box closest to the screens.[12]Ms Jefferies told him he was not allowed to touch any of his computer equipment. Mr Christensen says he did not realise he could not unplug his computer. In his affidavit he says that he powered down his computer, which seems to me to be a plainly inappropriate description of simply pulling out the plug.[13]Mr Christensen says that one of the screens was displaying pornographic material about which he was embarrassed and that is why he unplugged the computer.[14]Ms Jefferies says she does not believe that this is so and that she would have remembered if the screen had been displaying pornographic material. A subsequent examination of the computer did not reveal that any adult sites had been accessed on the morning of the search or the day before and the effect of unplugging the computer was to trigger an encryption program that Mr Christensen had installed on the two computers.[15]I do not believe Mr Christensen's account. I accept the supervising solicitor's evidence that he had been told twice not to interfere with anything covered by the order and it may well be that the precise words "Do not touch anything" were used. I do not think it matters whether Ms jefferies told him not to "touch" or not to "interfere" with the computer. Plainly, pulling out the plug from the computer, thus triggering the encryption program, is interfering with what was on the computer.[16]If, as Mr Christensen claims, he unplugged his computer to avoid her seeing pornographic material, his subsequent failure for many days to provide the search party with the pass phrase for the encryption program is inexplicable. To compound matters, he instructed his solicitors to put forward a cock and bull story about how he could not provide the pass phrase which, as he now accepts, was deliberately untrue.[17]The only credible explanation for Mr Christensen's conduct is that he deliberately unplugged the computer in order to trigger the encryption program in the hope that the contents of the computer would be placed beyond recovery.[18]Ms Jefferies, the supervising solicitor, went through the order paragraph by paragraph with Mr Christensen. She said it was serious and wide-ranging. She went through it in detail. This included an explanation of the penal notice. The process finished at about 8.47 am and must therefore have taken at least half an hour. I do not accept Mr Christensen's evidence that he did not understand the effect of the penal notice. He is an Oxford graduate and was working in a very high-powered job. The terms of the penal notice are clear. They are designed to be understood by people without Mr Christensen's educational advantages and accomplishments. During the course of the explanation, Ms Jefferies encouraged Mr Christensen on more than one occasion to take legal advice but at that stage he declined.[19]At this point, Mr Christensen went and took a shower.[20]At 9.00 am he was given a copy of the bundle that had been before Mr Justice Warren which he started to read. Ms Jefferies again suggested he should take legal advice. He continued reading the documents for about 45 minutes. Having finished reading, he asked to take legal advice, so Ms Jefferies contacted a partner in Farrer & Co to whom Mr Christensen spoke privately. The search party then arrived and the search began at about 10.15.[21]In his affidavit, sworn for the purposes of this application, Mr Christensen gives a wholly misleading account of what happened before the search party arrived. He creates the impression that he was given a couple of minutes between the arrival of the supervising solicitor and the arrival of the search party. In fact, the search party did not arrive until two hours after the supervising solicitor. In his sworn account of events, Mr Christensen also fails to mention that the supervising solicitor went through the order with him in detail before the search party arrived and also that he had spoken to a solicitor, even if briefly.[22]The account, in my judgment, is designed to bolster Mr Christensen's false evidence that he was in a state of panic. As the supervising solicitor said, she was at pains to keep things calm.[23]Moreover, Mr Christensen is a former army officer who has seen action in Iraq. I do not accept that he was in a state of panic when the supervising solicitor arrived, explained the order to him and allowed him to consider the documents all for a total of two hours.[24]The account that he gives demonstrates, in my judgment, his attempts to exculpate himself and to minimise the gravity of his breaches of the order.[25]On the arrival of the search party, Aspect's solicitors and Mr Richards again explained the order to Mr Christensen including the penal notice. Mr Richards emphasised that Mr Christensen's answers to questions would be noted down and that if he misrepresented the position, he would fall foul of the penal notice and there would be serious consequences. Once more, he went through paragraph 7 of the order which contained all the obligations about providing information.[26]In response to a series of questions, asking him whether he had taken any of Aspect's data offsite, Mr Christensen replied that he had not. He accepts that this was a lie. This lie was itself a breach of the order. Mr Christensen accepts that this is so and says that it explains some of his subsequent lies which were also breaches. He says that having told the initial lie, he felt bound by it and that it was the start of something that spiralled out of control.[27]Mr Christensen told Mr Richards that the only computer storage devices he had were certain computers, hard drives and other drives at his flat in his parents' home. Mr Christensen now accepts that this too was a lie. He had at least one other external hard drive which he said was stored in a neighbour's garage and which was not delivered to Aspect's solicitors until after a meeting on 6 November.[28]The search order was also executed at his parents' home where other computers were found. Mr Christensen had travelled there with the search party. He said that one of those computers belongs to his sister and that he had never used it. Mr Richards did not believe him and the computer in question was taken into the custody of the supervising solicitor as a disputed item.[29]That too was a lie. Mr Christensen had used the computer, as he is constrained to accept.[30]The order required him to give access to all his email accounts. This may not have been precisely explained to him when Mr Richards took him through the order, but I am satisfied that Ms Jefferies did take him through the order earlier in the morning. Mr Christensen gave log-in details to his hotmail email account which was specifically mentioned in the order. He did not at that stage reveal any other email account.[31]But that afternoon, while the order was being executed at his parents' home, information came to light as a result of the computer expert's work that suggested that Mr Christensen had another email account which was a gmail account with Google. When this was put to Mr Christensen, he confirmed that this was so. Mr Christensen said that he had not previously revealed the existence of this account because he had not been asked about it and did not realise that the order extended to it. I am prepared to accept that in the confusion which reigned in the morning, his initial failure to reveal the existence of that account may not have been a deliberate contempt.[32]According to the supervising solicitor's report, which I accept, Mr Christensen said that he could not remember the password to the gmail account. In his oral evidence he told me that he thought he had given the password at that time. I do not believe him. If he had given the supervising solicitor the password at that time, what happened over the next half an hour or so is inexplicable.[33]The consequence of Mr Christensen's failure to reveal first the existence and then the password of this email account were very serious. In breach of the order, Mr Christensen made a secret phone call to a friend and asked him to access the gmail account and to delete emails on it. Mr Christensen accepted that this was a conscious and deliberate breach of the order. In order to enable this to be done, he gave his friend the password, so his claim to have forgotten it was itself a lie. It is said that he misremembered the password the first time he gave it to his friend and that is borne out by the evidence that the friend gave in interview, but within 20 minutes he had the correct password, yet still did not reveal it to the search party until an hour and a half later, by which time he had confirmation from his friend that the emails had been deleted.[34]Mr Christensen now says that the deleted emails had nothing to do with Aspect, but at the same time he accepts that he was attempting to hide evidence from Aspect. He says that some of the deleted emails relate to a program called Matlab which he was using on his home computer to process Aspect's data. His explanations of why this has nothing to do with Aspect have varied. None of them credibly explain why it was necessary for him to arrange the secret deletion of these emails. The remaining deleted emails relate to Amazon EC2 Cloud which Mr Christensen described as being in effect a giant processor. He says that this was nothing to do with Aspect either, but he accepts that he used Amazon EC2 Cloud to process Aspect's confidential data, so it is plain that by arranging for the deletion of these emails, he was attempting to cover his tracks.[35]It is argued that the Amazon EC2 Cloud is not a listed device because it is not a storage facility. I reject this argument. It is plain on Mr Christensen's own evidence that files were stored on Amazon EC2 Cloud, even if they were stored for only a few days.[36]In his affidavit, Mr Christensen describes this as a technical breach of the order. It was not. The very purpose of the search and seizure order made without notice is to prevent the destruction of evidence, so by phoning his friend and arranging for the deletion of emails, Mr Christensen was striking at the very heart of this aspect of the administration of justice. In response to the application he swore an affidavit on 2 November 2009. As he now accepts, this was full of lies. However, although the swearing of a deliberately false affidavit amounts to perjury for which Mr Christensen may be prosecuted, the swearing of this particular affidavit, his first one, was not in my view itself a breach of the order with which I am concerned. This particular affidavit was not the affidavit that the order required to be sworn. Its principal relevance to this committal application as I see it is that it shows the extent to which Mr Christensen is willing to lie on oath.[37]In purported compliance with the order, Mr Christensen swore a second affidavit, also on 2 November 2009. This affidavit repeated on oath the lies that Mr Christensen had told the search party. He accepts there are deliberate lies in paragraphs 4, 5 and 10 and following of that affidavit. It contains further lies about the contents of the uploads. It was only possible for Mr Christensen to tell these lies because of his belief that he had effectively encrypted the data on his computers. These lies are breaches of the order. They are serious breaches because the giving of perjured evidence also strikes at the heart of the administration of justice.[38]By 4 November 2009, the computer expert had managed to access some of the files on Mr Christensen's computer. He discovered that, contrary to Mr Christensen's assertions and his perjured affidavit evidence, there was a copy of a highly confidential project called Archimedes on one of Mr Christensen's computers. This was brought to his attention on 5 November at a scheduled meeting with Aspect's solicitors. Mr Christensen and his solicitors and the supervising solicitors were also present at the meeting to review documents. Mr Christensen took advice. He said in evidence that this was another piece of evidence that he was lying, that everyone supporting him told him that he had to stop lying and that it had come to the point where he knew he had to tell the truth. This is not the evidence of a man who has had a sudden change of heart; it is the behaviour of a man who realises that he has been caught and has no choice but to admit the lies.[39]In the course of the meeting, the computer expert noticed that Mr Christensen had a LaCie thumb key, which is a sort of memory stick. He asked Mr Christensen about it. Mr Christensen said he'd borrowed it from a friend after the execution of the search order. In fact, it has been shown that Mr Christensen bought a similar LaCie key from Amazon in April 2009. He was asked about it again at the meeting on 11 November. This time, Mr Christensen said he had borrowed the thumb key several times before the search order and that he would hand it over, which he did the following day.[40]Thus, on 12 November, he handed the LaCie key and another thumb key to the computer expert. An examination of the LaCie thumb key shows that on 4 and 5 November, Mr Christensen loaded thousands of files onto it which partially overwrote what had previously been on it. The files which had been loaded onto the thumb key were not files of documents but system files and templates. There could be no doubt (and indeed Mr Christensen accepts) that they were loaded onto the thumb key in order to conceal what was there before. In addition, both thumb keys had been formatted on 11 November, the day before they were handed over to the computer expert.[41]Mr Christensen accepts that these actions were deliberate and that in the case of the LaCie key were deliberately intended to make the information that had been stored on it irrecoverable, which it is.[42]These actions by Mr Christensen were a second serious attempt to destroy evidence. If, as Mr Christensen said, the material on the LaCie key was privileged, there were adequate mechanisms in the order to deal with that. He also says that the LaCie thumb key was not in his possession on the day that the search order was made and therefore did not fall within its scope. He says that he borrowed it from a friend after the execution of the order.[43]As I have said, there is no doubt that he bought a similar device from Amazon some months earlier and that device was not disclosed by him to the search party. As noted, he also changed his story between the two meetings on 5 and 11 November.[44]I do not believe Mr Christensen's explanation. In his affidavit, he said that he borrowed the key because he liked it. Yet the reason he gave for not having disclosed the key he bought in April was that it had broken almost as soon as he bought it, which seems to me fatally to undermine his explanation that he liked it. In his oral evidence he said he borrowed it because he needed it for a meeting at 8.30 am that day with his solicitors, but he already had a Sandisk key which he discovered that day although he doesn't say at precisely what time, so there was no reason to borrow another. Moreover, USB sticks are widely available and even if his meeting began at 8.30 am, there was no impediment to his buying a USB stick immediately upon the conclusion of the meeting. I consider that it has been proved beyond reasonable doubt that that USB stick, the LaCie key, was something which ought to have been disclosed pursuant to the search order.[45]Mr Christensen says that as a result of having been confronted with the evidence he came clean on or about 5 November. I do not accept that this is or might be true. First, I have concluded that Mr Christensen has continued to lie on oath to the court. He has lied about the reason why he unplugged his computer on the morning of the search. He has lied about the circumstances in which he came to reveal the password to his gmail account. He has lied about the LaCie key.[46]Secondly, he formatted the two USB sticks after the date on which he said he had come clean. I am satisfied beyond reasonable doubt that Mr Christensen has only told the truth where he has had no alternative in the face of overwhelming evidence. I therefore find the following contempts of court proved beyond reasonable doubt:(1) on the morning of the search, Mr Christensen dishonestly denied that he had taken any of Aspect's confidential information;(2) on the morning of the search, Mr Christensen deliberately attempted to interfere with and to put the contents of his computer beyond reach by triggering the encryption program and thereafter by dishonestly claiming that he did not know how to release the encryption;(3) on the morning of the search, Mr Christensen deliberately concealed the existence of the hard drive stored in his neighbour's garage and at least one thumb drive;(4) on the afternoon of the search, having failed to reveal the password for his gmail account to the search party, Mr Christensen deliberately procured his friend to delete emails from it before releasing the password, thus destroying evidence that it was the purpose of the search order to preserve;(5) on 2 November, Mr Christensen swore a perjured affidavit in purported compliance with the search order;(6) having been advised to confess on 5 November, on or before 11 November Mr Christensen deliberately overwrote two thumb drives, in the case of one, thus destroying further evidence.[47]I turn next to the principles upon which I will base the sentence for these proven or admitted contempts. In Heidleberg Graphic Equipment Limited v Hogan [2004] EWHC 3090 (Ch), Mr

Justice Mann said:

[48]"Freezing orders and search and seizure orders are orders which are not uncommon these days. Where disclosure obligations are provided in orders, they are provided for a good reason. They are provided so that orders can be policed and/or so the claimants can be put in possession of information which they need. Where search and seizure orders are made, they are made because the interests of the claimant and of justice require it. The court can and should expect these orders to be obeyed without question by those upon whom they are served, and those who do not comply with those orders can expect little mercy from the court and can expect serious sanctions to be imposed upon them if they do not. The system simply will not work if people think that they can ignore court orders and destroy evidence, or remove materials from the scene to which claimants are entitled. Those who do so can expect terms of imprisonment..."[49]In Crystalmews Limited v Metterick [2006] EWHC 3087 (Ch), Mr Justice Lawrence Collins gave valuable guidance on the principles to be applied in sentencing for contempt consisting of a breach of a freezing order. He said:[50]"In contempt cases the object of the penalty is both to punish conduct in defiance of the court's order as well as serving a coercive function by holding out the threat of future punishment as a means of securing the protection which the injunction is primarily there to do."[51]He then cited authority and in what follows I will omit the citation of authority unless it is necessary to give meaning to the text:
"So far as the penalties are concerned, first, the court may impose an immediate custodial sentence limited to a two-year maximum. A person committed to prison for contempt of court is entitled to unconditional release after serving half of the sentence. A committal order is appropriate where there is serious contumacious flouting of orders of the court... "
In Pospischal v Phillips... the Court of Appeal held that where property was sold, and assets dissipated in breach of a Mareva injunction, an immediate prison sentence was necessary to both protect the plaintiff and punish the defendant. In that case, the Court of Appeal substituted a sentence of six weeks' imprisonment for the ten weeks imposed by the judge because the defendant was able to raise a loan and the money could be placed in the names of solicitors which would enable the Mareva injunction to be discharged. In Hudson v Hudson where the defendant withdrew and spent GBP20,000 in breach of a Mareva injunction an immediate prison sentence of nine months was imposed. But any custodial sentence imposed should be as short as possible consistent with the circumstances of the case. "Second, the court may impose a custodial sentence, the execution of which may be suspended for such period or on such terms as the court thinks fit. In Hale v Tanner, Lady Justice Hale said that suspension was usually the first way of attempting to secure compliance and Gulf Azov Shipping Company is an example of such a case where the judge directed that Chief Idisi be committed for three months, suspended on condition that the contempt was purged. "Third, the court may impose a fine of unlimited amount or order sequestration. If a fine would be the appropriate punishment, it is wrong to impose a custodial sentence because the contemnor is unable to pay a fine. It will also, I accept, be wrong to impose a custodial sentence because of the difficulty inherent in finding a person subject to a freezing injunction where the assets of the person are clearly below the maximum sum in the injunction. "The matters which I may take into account include these. First, whether the claimant has been prejudiced by virtue of the contempt and whether the prejudice is capable of remedy. Second, the extent to which the contemnor has acted under pressure. Third, whether the breach of the order was deliberate or unintentional. Fourth, the degree of culpability. Fifth, whether the contemnor has been placed in breach of the order by reason of the conduct of others. Sixth, whether the contemnor appreciates the seriousness of the deliberate breach. Seventh, whether the contemnor has cooperated."[52]I would add to this list of factors the following:(1) Whether the contemnor has admitted his contempt and has entered the equivalent of a guilty plea. By analogy with sentencing in criminal cases, the earlier the admission is made, the more credit the contemnor is entitled to be given;(2) But again, by analogy with sentencing in criminal cases, if a contested Newton hearing is held and the court decides the disputed facts adversely to the contemnor, he is liable to forfeit some of the credit to which he would otherwise be entitled;(3) Whether the contemnor has made a sincere apology for his contempt;(4) Whether the contemnor has been frank with the court in admitting his contempt;(5) In a criminal court the sentencer would also take into account a defendant's character and relevant antecedents. I think these are relevant to sentence for a civil contempt too.[53]In addition, as Thorpe LJ said in Lomas v Parle [2004] 1 FLR 812 the sentence of a civil court for contempt must not be manifestly discrepant with a sentence of the criminal court for an offence based on the same facts. In R v Hall (1982) 4 Cr App R (S) 153, Talbot J said that: "... it is almost inconceivable that a sentence of less than three months would be given for a deliberate perjury in the face of the court [since] such false evidence strikes at the whole basis of the administration of the law".[54]As recently as 2007, the Court of Appeal Criminal Division said in R v Lefton:
"Offences of perverting the course of justice and perjury have always been regarded by this court as so serious that immediate custodial sentences will almost invariably follow conviction -- even on a guilty plea."

Sentence Given

[55]MR JUSTICE LEWISON: Thank you, Ms Michalos. Mr Christensen, stand up, please. I have found that you have committed six contempts of the court order, some of which are more serious than others, but the swearing of perjured affidavits and the attempted destruction of evidence are amongst the most serious.[56]The consequences for these contempts for Aspect have also been serious. In the first place, they have caused Aspect to spend a large amount of money on the services of a computer specialist, some of which would not have been necessary if you had been honestly complying with the order. Secondly, the destruction of evidence means that the full extent of your wrongdoing may never be known. Third, your actions have meant that Aspect cannot rely now on anything that you say.[57]Of equal or more importance as regards the seriousness of those contempts to the court is the flouting of its orders and the undermining of the administration of justice, particularly in the giving of perjured evidence.[58]On the other hand, some of the contempts were temporary. You did reveal the existence of the gmail account on the afternoon of the search and you did eventually provide its password. You have attempted to contact Google to see if the deleted emails can be retrieved. You provided means to remove the encryption some ten days after the search had taken place. You did reveal the existence of the hard drive stored in your neighbour's garage which Aspect would probably not have otherwise discovered. You have corrected, to some extent, the perjured affidavit. It may be that the contents of the deleted emails can be recovered. It has not been proved beyond reasonable doubt that they cannot, so I have assumed that they can be. But the contents of the Lacie key are irretrievable.[59]Ms Michalos has submitted on your behalf that there is no evidence that the items on the Lacie key were other than privileged documents, but that is a problem; because you have destroyed what was on that key, we will never know, and that means that I cannot treat your case as a simple case of belated compliance with a court order.[60]In the present case, I have no doubt your contempts were deliberate. The unplugging of the computer and the subsequent lies about encryption were a deliberate attempt to put the contents of that computer beyond reach. The withholding of the existence of the password to the gmail account was again a deliberate breach to enable the contents of that account to be deleted. The lies you told on affidavit were again deliberate and designed to cover up your wrongdoing, so the degree of your culpability is in my view high.[61]The breaches were all of your own making and it is an aggravating feature that you procured your friend unwittingly to abet the breach. Even now I do not consider that you have appreciated the seriousness of the breaches, otherwise you would not have described the deletion of the emails as a technical breach.[62]But you have, as I have said, been cooperating to some extent with Aspect since November.[63]I take into account your admission of your contempts at a relatively early stage, although I found that the basis of your admission has significantly understated the true position, but nonetheless you are entitled to credit for having admitted your contempts.[64]You have apologised both to Aspect and to the court, although likewise your apology was based on your own false version of the circumstances in which the contempts took place. But nevertheless you are entitled to credit for those apologies.[65]I take into account your previous good character, both in the sense that you have served your country with distinction in the armed forces and also in the sense that you have adduced positive evidence of your good character from your former colleague Mr Lowe. I have also taken into account everything that Ms Michalos has said on your behalf. All those factors have enabled me to reduce the sentence which I would otherwise have passed.[66]Having weighed all those circumstances, I have nevertheless concluded that the contempts are so serious that only a prison sentence is justified. The period of the sentence must be as short as possible, commensurate with the gravity of the case and in my judgment the shortest sentence that I can impose upon you is a prison sentence of three months.[67]The final question is whether I should suspend that sentence. As Lady Justice Hale said in the case to which Ms Michalos has referred, the circumstances in which a civil court may suspend a sentence are more flexible than the circumstances in which a criminal court may do so. In considering this question, I have taken into account the fact that the search and seizure order was made in the context of litigation which has not yet come to an end, that there may be further orders of the court which you are required to obey, and that the coercive force of a suspended sentence may encourage you to future compliance. In addition, if you are in prison the conduct of your defence and the possibility of settlement will be more difficult.[68]I have also taken into account your previous good character and the fact that this is, so to speak, your first offence. I have also taken into account, as Ms Michalos urges, the financial loss that you have already suffered as a result of this litigation and also the probability that you will never work in financial services again. I have taken into account the likelihood that I will order you to pay Aspect's costs of this application. Finally, and it is this which has tipped the balance, I have taken into account the severe effect that these proceedings have had upon your mental health as evidenced by a letter from your doctor based in part at least on an objective test.[69]In the light of all that, I have come to the conclusion that I can suspend the sentence. My sentence, therefore, is that you be sentenced to a term of imprisonment for three months suspended for a period of 18 months. If you commit any further contempts of court during that period, an application may be made to the court to activate the suspended sentence. If it is activated, you will be taken to prison where you will serve one half of the sentence I have pronounced before being released. Do you understand? A. Yes, my Lord.

MR JUSTICE LEWISON: You may sit down now.

Cited in 14 later judgments

and 5 more of the most senior