In a judgment handed down this morning ([2012] UKSC 28), the Supreme Court unanimously dismissed the appeal of Mr Glenn Mulcaire against orders that he answer questions relating to his “phone hacking” activities in the context of the Voicemail Interception Litigation.

The respondent, Nicola Phillips, had sought an order that the appellant, Glenn Mulcaire be added as a defendant and that he serve a witness statement disclosing information under several heads, including the identity of the person instructing him to intercept the messages. He opposed the order for disclosure relying on privilege against self-incrimination (“PSI”).

In response Ms Phillips relied on s.72 of the Senior Courts Act 1981 (‘the Act’) as excluding PSI [8]. That section applies to, among others, proceedings for infringement of rights pertaining to any intellectual property and, when it applies, it excludes the privilege if the offence to which the person would tend to be exposed is a related offence [9].

The High Court ([2010] EWHC 2952 (Ch)). and Court of Appeal ([2012] EWCA Civ 48) considered that both of these conditions were made out.  Mr Mulcaire therefore could not rely on the privilege and he was ordered to provide the requested information.  We had a case comment on the Court of Appeal decision.

The issues on the appeal were

(i)  whether information left in voicemail messages on Ms Phillips’s mobile is “technical or commercial information” within the definition of “intellectual property” such that the proceedings are “for infringement of rights pertaining to any intellectual property”; and

(ii) whether, on the footing that Mr Mulcaire would expose himself to a charge of conspiracy in providing the information ordered, such proceedings would be for a “related offence” within the meaning of s.72(5) [1].

The Supreme Court held that section 72 excluded Mr Mulcaire’s privilege against self-incrimination: the proceedings brought by Ms Phillips are “proceedings for…rights pertaining to…intellectual property” and the conspiracy proceedings to which Mr Mulcaire would expose himself on disclosure of the information amount to a “related offence”.

The leading judgment was given by Lord Walker.   The Supreme Court summarised the reasons for the judgment as follows (see Press Summary)

Where Parliament has left no room for doubt that it intends the privilege to be withdrawn, there is no need for the Court to lean in favour of the narrowest possible construction of the reach of the relevant provision. An important part of the legislative purpose of these provisions is to reduce the risk of injustice to victims of crimes. That purpose might be frustrated by an excessively narrow approach [14]. Various definitions of “intellectual property” were put before the Court but they are not particularly helpful because there is no universal definition of the term [18]. The starting point must be the language of the definition in s.72(5). For present purposes the essential point is that the definition in s.72(5) contains the words “technical or commercial information”. The meaning of those words must be something in which a civil claimant has rights capable of being infringed. The fact that technical and commercial information ought not, strictly speaking, to be described as property cannot prevail over the clear statutory language. Whether or not confidential information can only loosely, or metaphorically, be described as property is simply irrelevant [19]-[20]. Not all technical or commercial information is confidential [23]. Conversely a secret about a person’s private life is not naturally described in normal usage as technical or commercial, even if it could be turned to financial advantage by disclosing it, in breach of confidence, to the media. [24]. Purely personal information is not “other intellectual property” within the meaning of s.72(5). The purpose of s.72 was to prevent remedies against commercial piracy from being frustrated, not to cover the whole of the law of confidence [28]-[29]. While there may be commercial value in personal information and this may lead to some difficult borderline cases, it is not a reason for adopting an unnatural construction of the definition [31]. On the facts pleaded in this appeal there is no great difficulty as to “mixed messages”, where some of the information is commercial and some is not. Ms Phillips’s pleading is to the effect that the voicemail messages left by her clients contained commercially confidential information. There is no reason to suppose that the commercial information was not significant [32].

There must be a sufficient connection between the subject-matter of the claimant’s civil proceedings and the offence with which the defendant has a reasonable apprehension of being charged. Pursuant to s.72(5) the offence must be committed by or in the course of the infringement to which the proceedings relate unless the offence involves fraud or dishonesty, in which case a looser connection is sufficient [34]. It is well established that conspiracy is a continuing offence. While the offence is committed as soon as the unlawful agreement is made, the conspiracy continues until the point when the agreement is terminated by completion, abandonment or frustration [43]. If Mr Mulcaire conspired to intercept messages on mobile phones, an offence was committed when the unlawful agreement was made. But the offence continued so long as the agreement was being performed. Every interception pursuant to the unlawful agreement would be in the course of the offence [45].

We will publish a case comment in due course but it should be noted that the Supreme Court took a narrower view than the Court of Appeal of the ambit of section 72.