The Supreme Court has had its first (and perhaps last) look at an issue arising from the phone hacking litigation against the News of the World newspaper.

The appeal related to a request for further information served by the Claimant, Ms Nicola Phillips, on the Second Defendant, Mr Glenn Mulcaire, the private investigator engaged by the newspaper.  Mr Mulcaire had declined to provide the information, asserting that to do so would be contrary to his privilege against self incrimination, having regard to the significant scope for criminal prosecution he still faced arising from his alleged phone hacking activities.

Ms Phillips countered that the privilege was disapplied in these circumstances by section 72 of the Senior Courts Act 1981.  Section 72 provides that a person cannot avoid answering such questions simply on the basis “that to do so would tend to expose [him] … to proceedings for a related offence” in “proceedings for infringement of rights pertaining to any intellectual property … “.   The section further defines “Intellectual property” to mean:

“any patent, trade mark, copyright, design right, registered design, technical or commercial information or other intellectual property.” [emphasis added]

As is typical with provisions which disapply the privilege against self incrimination, the section prevents any information or admission given being used in proceedings for a related offence.

A first instance, Mr Justice Mann accepted that section 72 applied and ordered that Mr Mulcaire provide the requested information.  Mr Mulcaire appealed and the appeal was heard with one in a hacking case brought by Steve Coogan where the same issue arose.  Lord Neuberger giving the leading judgment dismissed the appeal.

When the case came before the Supreme Court it turned on two short points of construction.

Firstly, whether the subject matter of the hacking litigation constituted “intellectual property” as defined.  The information which was hacked, it was alleged, covered a range of information both concerning Ms Phillips’ business and private information concerning her clients.

Secondly, whether if by Mr Mulcaire potentially exposing himself to criminal proceedings for conspiracy by answering the request, such proceedings would be a “related offence” as required for the section 72 exemption to apply.

Lord Walker gave the leading judgment with which the other Justices agreed.

In respect of whether the subject matter of the hacking litigation constituted “intellectual property”, he held that there was no “universal definition of the term” but that the phrase “technical or commercial information” was not, as Mr Mulcaire contended, limited by the words “or other intellectual property”.  Accordingly, it was not restricted to material more conventionally understood to constitute intellectual property and included information which was merely confidential provided it was commercial information.

However, Lord Walker departed from Lord Neuberger when it came to merely private information.  Lord Neuberger had argued that (particularly in the context of a journalist) private information had a commercial value and so constituted “commercial information”.  Lord Walker held that this went too far.  This could have important implications in limiting the disclosure requirements on Mr Mulcaire in the hacking litigation at it proceeds.

In terms of the related offence issue, section 72 requires that the potential offence to which the person may be exposed must either be “any offence committed by or in the course of the infringement … to which those proceedings relate” or “any offence … committed in connection with that infringement … being an offence involving fraud or dishonesty”.  Mr Mulcaire contended that the disclosure of the information might expose him to criminal proceedings of conspiracy, that is in agreeing the course of action with the journalist, an offence which he said would not have been committed “in the course of the infringement” but prior to it.

Perhaps not surprisingly, Lord Walker was not sympathetic to this argument.  He noted that there had to be some connection between the subject matter of the proceedings and the offence to which the person being required to disclose the information may be exposed.  But, he stated, the criminal offence of conspiracy is a continuing offence.  It is not just committed at the outset but so long as the parties intend to carry it out.  Consequently, it was an offence committed by or in the course of the infringement.

The decision reflects the current judicial tide questioning the necessity of privilege against self incrimination in civil proceedings.  Lord Neuberger in the Court of Appeal went as far as to state as follows.

“I would take this opportunity to express my support for the view that PSI has had its day in civil proceedings, 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.”

Even in Strasbourg, the tide has somewhat turned.  In In O’Halloran v United Kingdom (2008) 46 EHRR 21 the European Court of Human Rights held that a provision of the Road Traffic Act 1988, which required vehicle owners to identify the driver, did not involve an infringement of Article 6, even if the identification led to a prosecution.

The view appears to be that if any information disclosed in civil proceedings is inadmissible in any criminal proceedings, then no undue prejudice arises.  But this rather ignores the reality that such information can be useful to a prosecutor and damaging to a potential criminal defendant in ways other than being admitted at the criminal trial.  Such information can put the investigating authorities on a train of inquiry or allow them to prioritise investigatory leads.  Also, if the disclosure in subsequently aired in the media (which is not a wholly theoretical concern in the context of the hacking litigation), it may come to the attention of potential jurors.

Foreign lawyers can think that the obligation of disclosure in English civil proceedings law is highly invasive.  But the powers to compel the disclosure of information under CPR Part 18 on penalty of contempt and conceivably imprisonment are much more powerful and potentially draconian.  Stepping back, the exercise of such powers in the context of where individuals face the likelihood of criminal prosecution seems inherently to give rise to concerns.  However, this decision reflects the fact that the Courts are not currently overly perturbed.