Out-Law News 4 min. read

Mulcaire cannot invoke right not to self-incriminate, says Court of Appeal


Individuals do not have the right to avoid self-incrimination in court if they are accused of unlawfully intercepting confidential commercial or technical information belonging to someone else, the Court of Appeal has ruled.

The Court rejected an appeal by private investigator Glenn Mulcaire who claimed UK laws restricting individuals' right not to incriminate themselves did not apply to him. The Court also rejected Mulcaire's claim that the laws breached his fundamental rights to a fair trial. Mulcaire said he would appeal the ruling to the UK Supreme Court.

Mulcaire was jailed in 2007 for his part in the illegal interception of mobile phone messages for the News of the World (NotW) newspaper. He faces a number of civil suits related to other instances of alleged hacking.

Comic Steve Coogan and Nicola Phillips, a former assistant to publicist Max Clifford, allege that Mulcaire unlawfully intercepted their voicemail messages or that he or someone at the NotW instructed others to do so. Their lawyers argued that information contained on their mobile phone voicemail was confidential and that because it was commercial or technical Mulcaire should not be able to invoke the right not to incriminate himself and should have to disclose the information. The Court of Appeal agreed.

Established case law in the UK has provided individuals with a right not to have to answer questions if by doing so they risk facing a "criminal charge, penalty or forfeiture which the judge regards as reasonably likely to be preferred or sued for". This right has also been written into law relating to civil proceedings under the Civil Evidence Act.

However, under some UK legislation the privilege against self-incrimination is restricted.

Under the Senior Courts Act a person "shall not be excused" from answering questions put to them in civil High Court legal proceedings "for infringement of rights pertaining to any intellectual property or for passing off; proceedings brought to obtain disclosure of information relating to any infringement of such rights or to any passing off; and proceedings brought to prevent any apprehended infringement of such rights or any apprehended passing off" even if doing so " would tend to expose that person ... to proceedings for a related offence or for the recovery of a related penalty".

The Act defines 'intellectual property' as meaning "any patent, trade mark, copyright, design right, registered design, technical or commercial information or other intellectual property".

The Act also states that any statement or admission given by an individual in being forced to answer questions related to the infringements or proceedings listed cannot be used against them as evidence "in proceedings for any related offence or for the recovery of any related penalty" except in relation to cases of perjury or contempt of court.

The Court of Appeal deemed that the Act had been drafted in such a way that it was "intended" for "confidential information of a commercial nature to be included in the definition of 'intellectual property'". Because Coogan and Phillips both said they had "significant" amounts of confidential commercial information stored in their voicemail, Mulcaire could not legitimately invoke his right not to incriminate himself, it ruled.

"In my view, if there is evidence ... which establishes that a significant amount of confidential information is ordinarily (or was around the time of the interception) included in her voice messages, then that will normally be enough to justify section 72 [of the Senior Courts Act] being invoked. And in this context, I consider that 'significant' means 'more than insignificant'," the Master of the Rolls said on behalf of himself and the two other judges in their Court of Appeal ruling.

"Where a defendant has intercepted the claimant's voice messages, there must be a strong presumption that at least some of the information contained in the messages is confidential: save in a very unusual case, that would be the very reason for intercepting the messages," the ruling said. "It cannot have been envisaged that such a defendant could, for instance, contend that section 72 does not apply because, although he managed to intercept a few confidential messages, some of the messages, or even the bulk of the messages, which he intercepted were not confidential in nature."

"Nor can it have been envisaged that such a defendant could contend that section 72 does not apply because the claimant could not show that the bulk of the intercepted messages contained confidential information. The fact that there may be numerically more messages which are not confidential would be more than outweighed by the greater importance of the confidential messages, to the claimant and defendant, and in the eyes of the law and public interest," it said.

"Accordingly, if a defendant has intercepted a claimant's voice messages, it seems to me that, even where there is a significant preponderance of plainly non-confidential messages, he should nonetheless disclose them as part of the overall disclosure exercise," said the judge."If, on the basis of considering the messages which he has intercepted, the defendant is able to say on oath that he has received no confidential information from the claimant (at least without the claimant's authority), then that might persuade the court that section 72 cannot be invoked. However, because there is no such evidence in the present cases, it is unnecessary to decide that point, which I would prefer to keep open."

Mulcaire claimed that by being forced to disclose information about who ordered the phone hacking he would risk not being given a fair trial in the future. The European Convention on Human Rights sets out individuals' fundamental right to a fair trial and certain rights as to how that can be achieved. The Court of Appeal rejected his claim.

"I do not accept that what he characterised as [Coogan and Phillips'] claim to vindicate their right to respect for their private lives should be outweighed by [his] right to a fair criminal trial, when it is not clear that there will be such a trial and, even if there is, that it would be unfair," the Master of the Rolls said in the Court's ruling.

"There are many safeguards so far as Mr Mulcaire is concerned, namely [those set out in the Senior Courts Act], the fact that the decision to prosecute must be Convention-compliant, and the fact that, if there is a criminal trial, the court will ensure the fairness of the trial process at common law and under the Convention," he said.

Mulcaire said he would appeal the Court's ruling, according to a report by the Press Gazette.

"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," he said.

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