Glenn Mulcaire, the private investigator hired by News Group Newspapers, and one of the most prominent casualties of the phone-hacking saga, may yet be compelled to shed further light on the goings on at the media group.
Earlier this month the Court of Appeal dismissed his appeal against two orders of the High Court in favour of two claimants which ruled that he could not rely on the privilege against self-incrimination (“PSI”) due to section 72 of the Senior Courts Act 1981 (“the Act”), which takes away that privilege in certain circumstances. Mulcaire therefore remains subject to the High Court orders, one of which provides for Mr Mulcaire to provide information as to the identity of the individuals:
(a) who had instructed him to intercept one of the claimants voice messages;
(b) to whom he had supplied information or recordings of such messages; and,
(c) whom he had instructed to hack into the claimants phone.
PSI is a firmly established feature of common law (though it is not without its critics amongst the judiciary), which essentially exempts a person from being compelled to produce, in this case, information, which might incriminate them in any potential or current criminal proceedings.
However, there are certain statutory exceptions, one of which is found in at Section 72 of the Act which withdraws PSI in civil proceedings for (among other things) “infringement of rights pertaining to any intellectual property”.
In his judgment, Lord Neuberger considered whether the information intercepted from the claimants’ phones was “intellectual property” within the meaning of the Act.
Interestingly for practitioners, and somewhat troubling for those embroiled in the phone hacking saga, Lord Neuberger found that “intellectual property”, which is defined to include “…technical or commercial information…” included information of the sort that Mr Mulcaire had a hand in obtaining from the claimants.
As above, the judgment appears to open the way to Mulcaire being forced to identify who instructed him to carry out the phone-hacking of the claimants in question, and to whom he supplied the information.