The Court of Appeal today dismissed Mr Glenn Mulcaire’s appeal against an order that he provide information to claimants in the phone hacking litigation ([2012] EWCA Civ 48).  The Court (Lord Judge, Lord Neuberger and Maurice Kay LJ) unanimously upheld the rulings of Mann J and Vos J that, as a result of the operation of section 72 of the Senior Courts Act 1981, Mr Mulcaire was not entitled to rely on his privilege against self-incrimination (“PSI”).

Background

Ms Philips, a former assistant to the publicist Max Clifford and Mr. Coogan each brought proceedings against News Group Newspapers Limited (“NGN”) and Mr Mulcaire for damages for breach of confidence and misuse of private arising out of “phone hacking”.   Ms Phillips sought an order that Mr Mulcaire swear an affidavit giving information about the individuals who had instructed him, the interception he was instructed to carry out and other matters.   He refused, invoking PSI.

Ms Phillips, in turn, relied on the “exception” to the privilege in section 72 which provides that

‘(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 … to proceedings for a related offence … :

(a) from answering any question put to that person in the first-mentioned proceedings; or

(b) from complying with any order made in those proceedings.

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

(a) proceedings for infringement of rights pertaining to any intellectual property or for passing off;

(b) proceedings brought to obtain disclosure of information relating to any infringement of such rights or to any passing off;

(c) proceedings brought to prevent any apprehended infringement of such rights or any apprehended passing off.

(3) …. [N]o statement or admission made by a person:

(a) in answering a question put to him in any proceedings to which subsection (1) applies; or

(b) in complying with any order made in any such proceedings, shall, in proceedings for any related offence … , be admissible in evidence against that person …

(5) In this section:

“intellectual property” means any patent, trade mark, copyright, design right, registered design, technical or commercial information or other intellectual property;

“related offence”, in relation to any proceedings to which subsection (1) applies, means:

(a) in the case of proceedings within subsection (2)(a) or (b):

(i) any offence committed by or in the course of the infringement or passing off to which those proceedings relate; or

(ii) any offence not within sub-paragraph (i) committed in connection with that infringement or passing off, being an offence involving fraud or dishonesty;

(b) in the case of proceedings within subsection (2)(c), any offence revealed by the facts on which the plaintiff relies in those proceedings; ….’.

On 17 November 2010, Mann J held that Mr Mulcaire was not entitled to rely on the PSI ([2010] EWHC 2952 (Ch)).

A similar application was made subsequently by Mr Coogan in another action.  The PSI point was dealt with by Vos J who, after fuller citation of authority, reached the same conclusion as Mann J ([2011] EWHC 349 (Ch)).

Mr Mulcaire appealed against both orders and the appeals were heard together.   Mr Mulcaire argued that:

(i) Information obtained by Mr Mulcaire from intercepting the voice messages of Ms Phillips and/or Mr Coogan was not ‘intellectual property’ and therefore section 72 cannot apply;

(ii) If the information in question was ‘intellectual property’:

(a)  Mr Mulcaire would, if he were required to provide all the information ordered by Mann J, and some of the information ordered by Vos J, be at risk of being prosecuted for an offence which is not a ‘related offence’, so section 72 does not apply;

(b)  Section 72 is inconsistent with Article 6 of the European Convention on Human Rights (‘the Convention’), and the court should accordingly make a declaration of incompatibility.

Judgment

Lord Neuberger MR delivered the sole judgment.  He began his analysis with some general observations about PSI, concluding

“I would take this opportunity to express my support for the view that PSI has had its day, provided that its removal is made subject to a provision along the lines of section 72(3). Whether or not one has that opinion, however, it is undoubtedly the case that, save to the extent that it has been cut down by statute, PSI remains part of the common law, and that it is for the legislature, not the judiciary, to remove it, or to cut it down” [18].

In relation to the first issue, he began by noting that the only basis upon which it could be said that the information intercepted from the claimants’ phones constituted ‘intellectual property’ as defined in section 72(5) was if it was ‘technical or commercial information or other intellectual property’. [22]

Lord Neuberger rejected the argument put forward by the Secretary of State (as an interested party) that “commercial information” should be broadly interpreted because section 72, together with the PSI restrictions contained in the Theft Act 1981 and the Fraud Act 2006 represent a “coherent code” to limit PSI. Conversely, he found that the provisions in question were “piecemeal” and “arbitrary” and operate in wholly different contexts. [28]

He expressed the provisional view that this expression meant confidential information which is technical or commercial in character.  After considering a number of authorities and textbooks he said

“while the prevailing current view is that confidential information is not strictly property, it is not inappropriate to include it as an aspect of intellectual property. Accordingly, unless there is binding authority to the contrary, I am of the view that, given the normal meaning of ‘commercial information’, the draftsman of section 72 intended confidential information of a commercial nature to be included in the definition of ‘intellectual property’” [39].

Lord Neuberger then went on to consider whether “non-commercial confidential information” fell within the ambit of the definition of intellectual property in section 72.  Although, at first sight it might appear that the answer was “no”, he concluded that such information did, in fact, constitute “other intellectual property”, essentially for four reasons.

First, if confidential commercial information was intellectual property then non-commercial confidential information would be “other intellectual property” [46].  He suggested that the reason why the draftsman did not simply use the words “confidential information” was that, in 1981, the law of confidential information was only rarely applied to personal confidences [47].

Second, there were practical reasons for including personal confidential information because

“It would be surprising if PSI could be invoked by a defendant in relation to a breach of confidence claim which related to personal information, but not where the nature and circumstances of the claim were identical, save that it related to commercial information” [51]

Third, if personal confidential information is not intellectual property, the same information could be commercial in one person’s hands and personal in the hands of another.  “If commercial information, but not personal, information is within section 72, then the applicability of the section could, in some cases, turn on how the claim is pleaded – a most unattractive result“. [52]

In relation to the problem of “mixed messages” – ones which contain some confidential information and some non-confidential information – Lord Neuberger was of the view that there was a “strong presumption that at least some of the information contained in the messages is confidential” [55].  As a result, “if a defendant has intercepted a claimant’s voice messages … even where there is a significant preponderance of plainly non-confidential messages, he should nonetheless disclose them as part of the overall disclosure exercise” [56]

Lord Neuberger therefore concluded that the disclosure orders of Mann and Vos JJ should be upheld.

The second argument advanced by Mr Mulcaire was that information concerning the identity of those who had given instructions or to whom information had been passed, was information which would expose him to proceedings for a “related offence”.  This was rejected on the basis that “where a person intercepts a voice message on the instructions of a third party, the giving of those instructions can fairly be said to be part and parcel of the interception”. [66]

Finally, Mr Mulcaire contended that section 72 was incompatible with Article 6 of the European Convention on Human Rights.  This argument was given short shrift by Lord Neuberger who said that, in his opinion, it was wrong [73] and was not supported by the Strasbourg jurisprudence [74]

Lord Neuberger’s conclusions were as follows:

i) Much of the information on the voicemail messages of the claimants which have been intercepted by Mr Mulcaire is likely to have been ‘commercial information or other intellectual property’ within section 72(5);

 ii) Although some of the information was not ‘commercial information or other intellectual property’, and, in Ms Phillips’s case, the confidence may have been that of her clients, section 72 can be relied on against Mr Mulcaire in both cases;

 iii) Para (a)(i) of the definition of ‘related offence’ in section 72(5) applies, and, while paras (a)(ii) and (b) do not, that does not assist Mr Mulcaire in resisting any aspect of the orders he is appealing;

 iv) Section 72, as so interpreted, is not incompatible with the Convention, and in particular Article 6; so the orders requiring Mr Mulcaire to give the information ordered by Mann and Vos JJ were correct;

 v) It would be inappropriate to impose any safeguards in favour of Mr Mulcaire over and above those contained in section 72(3);

 vi) Vos J’s order striking out references to PSI in Mr Mulcaire’s Defence in the proceedings brought by Mr Coogan was correct. [83]

Comment

This is an important judgment on PSI and section 72 in general and for the phone hacking litigation in particular.   The Court of Appeal was prepared to extend the removal of PSI by section 72 to all cases involving the obtaining of confidential information.   Although it is not said so in terms, this plainly extends to “private information” as well.  It is clear that any information obtained from voicemails (and, by extension) emails constitutes intellectual property for the purposes of section 72 and that, as a result, PSI cannot be relied on by the alleged wrongdoer. It is consequently hard to imagine any circumstances where confidential information has been illegally obtained which would now permit reliance on PSI in civil proceedings.

It seems likely that, as a result of this decision, the claimants in the voicemail interception litigation will now seek to require Mr Mulcaire to provide detailed information as to when, where, by whom and for what purposes he was instructed to carry out phone hacking by NGN employees.  The potential of this to expose just how deep knowledge of phone hacking went is obvious and significant.

Doubtless in anticipation of applications for such orders, Mr Mulcaire sought permission to appeal to the Supreme Court and a stay of the effect of the ruling.  The Court refused permission to appeal but granted a stay until 5pm on Monday 6 February 2012 pending an application to the Supreme Court for permission to appeal.  The Master of the Rolls suggested that the appeal should be expedited because of the pending trial.

An optimistic Mr Mulcaire said in a statement issued through his solicitor, Sarah Webb, that there was no dispute that he was entitled to invoke the long-standing common law PSI, subject to Section 72 of the Senior Courts Act 1981, on which the appeal hinged.

“I am pleased that the Court of Appeal has recognised that this privilege remains a part of our common law. It has also emphasised that it cannot be removed in civil proceedings without safeguards for the person at risk of prosecution.  Though it considered that the Act removed my privilege in these two cases, the Court of Appeal considered the arguments put forward on my behalf in great detail in its judgment.  It acknowledged that those arguments ‘appear to be of some general significance’.  I intend to appeal this ruling to the Supreme Court, because this may affect my right to claim the privilege in other civil cases still being brought against me.”

This is right – the Court of Appeal was clear that any limitations on the common law right of PSI were to be made by Parliament and not the judiciary. However, the Court of Appeal’s interpretation of those parliamentary limitations leaves Mr Mulcaire in a decidedly unprivileged position.

Kirsten Sjovoll is a trainee barrister at Matrix Chambers