Legal Briefing

Privilege against self-incrimination: ‘an archaic and unjustifiable survival from the past’?

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Dispute resolution | 01 May 2012

The recent case of Coogan v News Group Newspapers Ltd & anor [2012] is the latest in a string of claims arising out of the infamous phone-hacking scandal that dominated the media for most of 2011. In this case, the Court of Appeal considered the law of privilege against self-incrimination (PSI). In particular, it examined whether the notorious private investigator Glenn Mulcaire could rely on PSI, given an exception in s72 of the Senior Courts Act 1981 providing that, where proceedings involve the infringement of intellectual property rights, privilege against self-incrimination cannot be relied upon. The judgment also contains some interesting comments on the meaning of the terms ‘intellectual property’ and ‘confidential information’ and the relationship between these two concepts.

What is PSI?

The common law rule of PSI was described in Blunt v Park Lane Hotel Ltd [1942] as being ‘the rule… that no one is bound to answer any question if the answer thereto would, in the opinion of the judge, have a tendency to expose [him] to any criminal charge or penalty, or forfeiture which the judge regards as reasonably likely to be referred or sued for’ and further that the rule ‘applies to oral evidence, interrogatories and the discovery of documents’.

In relation to civil proceedings, the rule is set out in s14(1) of the Civil Evidence Act 1968, which provides that a person can refuse to answer any question or produce any document, if to do so would ‘tend to expose’ that person to proceedings for a criminal offence or criminal penalty. The risk of exposing the individual to criminal proceedings must be ‘a real and appreciable risk as distinct from a remote or insubstantial risk’ (Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978]).

PSI only applies to offences under the law of any part of the UK, although, where there is a risk of incrimination overseas, the judge may exercise discretion to refuse to order disclosure of the relevant information or to exclude it from evidence.

Companies are entitled to PSI but the question of whether employees or directors of a company are entitled to refuse to provide information, on the grounds that it would incriminate the company, was left open by the House of Lords in Rio Tinto and Kensington International Ltd v Republic of Congo [2007].

While PSI has faced criticism over the years for being outdated (see below), the European Convention of Human Rights (ECHR) (as incorporated into English law by the Human Rights Act 1998) has afforded it a somewhat rejuvenated status, as the right is implied into Article 6 of the ECHR that provides the right to a fair trial. The European Court of Human Rights (ECtHR) has stated that ‘the… right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of a fair procedure under Article 6’ (Heaney and McGuinness v Ireland (2001), para 40).

Exceptions to the rule

However the ECtHR and the English courts have held that the right not to incriminate oneself is not an absolute right and that qualification of the right is acceptable if directed by national authorities towards clear and proper public objectives and if the qualification is no greater than the situation calls for (see Brown v Scott [2003]). It was held in Saunders v UK [1996] that a statutory provision that removes a defendant’s right to PSI will not fall foul of Article 6 if it contains a provision that prevents the evidence being used against the defendant in criminal proceedings. In Coogan the Court of Appeal went further, saying that O’Halloran & anor v UK [2008] suggested that not every statutory provision that requires parties to provide evidence that may be used against them in criminal proceedings will fall foul of Article 6. In that case, the Grand Chamber of the Strasbourg Court held that provisions under the Road Traffic Act 1998 that require the registered owner of a vehicle to identify the driver to the police at the time of an alleged offence would not infringe Article 6, even if the identification led to a prosecution.

Over the years, a number of carve-outs to the rule have been established by both Parliament and the courts. These exceptions to the rule remain largely unrelated and have been developed in a piecemeal fashion to cover a wide range of situations that continue to grow in number. Most statutes that remove PSI do so only in particular situations and in most cases the removal is subject to restrictions on what use can be made of the evidence/documents.

An important example of such a statutory caveat is s13 of the Fraud Act 2006, which provides that ‘in proceedings relating to property’ a party is not entitled to refuse to provide information on the ground that doing so may incriminate them for an offence under the Fraud Act1. The word ‘property’ is broadly defined as meaning ‘money or other property whether real or personal (including things in action and other intangible property)’, which means that PSI will not be available in many civil fraud claims.

The Coogan case

In Coogan, Nicola Phillips, a former assistant to PR agent Max Clifford, and Steve Coogan, the well-known comedian, each brought claims for breach of confidence and misuse of private information on the basis that their mobile telephone messages had been unlawfully intercepted (‘hacked’) by or on the instructions of Mr Mulcaire and/or News Group Newspapers, the owners of the News of The World.

As part of their claims, each claimant sought an order requiring Mr Mulcaire to provide certain information that included the identity of the individuals who told him to intercept the messages and the nature of the interception he was instructed to carry out. Mr Mulcaire objected to this on the ground that it would tend to incriminate him because intercepting voice messages is an offence under the Regulation of Investigatory Powers Act 2000. Ms Phillips and Mr Coogan argued that s72 of the Senior Courts Act 1981 (the 1981 Act) removed Mr Mulcaire’s PSI.

Scope of s72 of the 1981 Act

Section 72 of the 1981 Act identifies certain types of civil proceedings in the High Court to which PSI does not apply. These include, at s72(2)(a), ‘proceedings for infringement of rights pertaining to any intellectual property or for passing off’. ‘Intellectual property’ is defined, at s72(5), as ‘any patent, trade mark, copyright, design right, registered design, technical or commercial information or other intellectual property’ (emphasis added).

Section 72, in other words, has the effect of preventing a defendant from relying on PSI where claims involve the infringement of intellectual property rights and passing off. The provision was introduced to reflect concerns that PSI would otherwise operate to frustrate the use of search orders in intellectual property piracy claims. The 1981 Act also provides that the answers given in such claims shall not be used in any related criminal prosecution.

At first instance, each of the claimants’ applications were heard separately but both Mann J and Vos J held that s72 did apply and that Mr Mulcaire could not rely on PSI to resist disclosing the information sought by the claimants. Mr Mulcaire appealed to the Court of Appeal.

Court of Appeal’s attitude to PSI

Before dealing with the Court of Appeal’s decision on the specific points at issue, it is worth commenting on the approach adopted by the Master of the Rolls, Lord Neuberger (who gave the only reasoned judgment), to PSI in general as this will put the decision in context.

Lord Neuberger noted that there ‘have been a number of relatively recent judicial observations from authoritative sources, criticising the appropriateness of PSI in modern circumstances’. For example, in JSC BTA Bank v Ablyazov & ors [2009], Sedley J referred to ‘the potentially stultifying effect of the privilege against self-incrimination on the administration of justice’ and noted that the rule’s ‘real mischief… is the suppression of crucial evidence’. He asked how ‘an exclusionary rule designed to promote justice by preventing the use of torture or pressure to extract confessions [has] become transmuted into a personal right which is able to defeat the ends of justice?’. While he recognised the human rights implication that no state authority should be allowed arbitrarily to extract, from individuals, information that may incriminate them, he also confirmed the importance of the state being able to insist on an answer to a necessary question in prescribed situations.

Similarly, in AT&T Istel Ltd v Tully [1993], Lord Templeman described PSI in civil proceedings as ‘an archaic and unjustifiable survival from the past’. In Sociedade Nacional de Combustiveis de Angola UEE v Lundqvist [1991], Sir Nicolas Browne-Wilkinson V-C suggested that Parliament should consider, ‘as a matter of urgency’, removing the privilege against self-incrimination in relation to all civil claims relating to property (including claims for damages).

Lord Neuberger clearly had some sympathy for this judicial criticism of PSI, expressing the view that it ‘has had its day’. He added that, while he could not give the exception set out in s72 an artificially wide interpretation, ‘in the light of the consistent judicial questioning as to whether PSI is still appropriate in civil proceedings, it would be rather odd for a court to interpret such a provision narrowly’.

Decision of the Court of Appeal

Ms Phillips described her voice messages as containing private and confidential information relating to her clients’ personal lives and relationships, health, finances, personal security, publicity issues, commercial business transactions, professional relationships and future career plans. Mr Coogan described his as containing information about his work as an actor, writer and producer and also his role as chairman and director of a production company and related business transactions, contracts and funding.

The claimants argued that this information was ‘technical or commercial information or other intellectual property’ for the purposes of the definition of intellectual property in s72(5) of the Act. Mr Mulcaire argued that this information was not intellectual property and that therefore s72 of the Act did not apply, meaning that he could rely on PSI to resist disclosure of the information sought by the claimants.

Lord Neuberger accepted that the use of the words ‘or other intellectual property’ meant that s72 only covered items that ‘would be seen as intellectual property in the normal sense of the expression’. He therefore had to consider the meaning of intellectual property, as defined in the Act and specifically whether confidential information constituted intellectual property.

He started from the premise that the information had to be confidential in order to be protected by law or arguably even to qualify as intellectual property. The definition covered both commercial and personal confidential information (which was ‘other intellectual property’). It did not matter that all of the intercepted messages were not confidential, as long as some of them were.

Lord Neuberger accepted that it would be hard to justify ‘intellectual property’ as ‘covering something which could not be regarded as property or at least as having a proprietary quality’. He therefore had to consider whether confidential information can be classified as property of any kind. Against this proposition were:

  1. the statement by Lord Walker in Douglas & ors v Hello! Ltd & ors [2007] that ‘the equitable jurisdiction to restrain… breach of confidence… does not depend on treating confidential information as property, although it is often referred to, loosely or metaphorically, in those terms’; and
  2. the case of Boardman v Phipps [1966], where the House of Lords split 3-2 in favour of the view that confidential information was not property (although that was not part of the ratio of the decision).

However, he noted that the statement by Lord Upjohn in Boardman that ‘the real truth is that [information] is not property’ was immediately followed by the words ‘in the normal sense’. He also noted, quoting from The Law of Confidentiality: a Restatement (2008) by Paul Stanley, that ‘information, even if not property, is certainly capable of being… appropriately regarded as an “asset”’, and ‘it is often natural to use property language in relation to information, in a metaphorical sense, for instance to say that information is trust property or partnership property’. This meant that Lord Neuberger felt able to conclude that ‘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’.

This finding may have significant consequences for breach of confidence claims. For example, in Jones v IOS (RUK) Ltd & anor [2012], Judge Hodge QC used this statement in support of his conclusion that, in a breach of confidence claim, the test was not whether the claimant ‘owned’ the relevant commercial information but whether it had made a sufficient contribution to the creation of that information to entitle it to maintain an action to restrain unauthorised dissemination or use.

It is also worth noting that the Master of the Rolls also considered what was meant by the ‘intellectual’ aspect of ‘intellectual property’ (although he noted that the concept seems to have developed ‘so as to render it unsafe to place much meaning on the natural meaning of each of the two words’). In this respect, he referred to the statement in Intellectual Property: Patents, Copyrights, Trademarks & Allied Rights (2010) by Cornish, Llewelyn and Aplin that intellectual property ‘protects information and ideas that are of commercial value’ and said that, while it would be dangerous to treat this as a definition, this was a ‘useful short and simple guide’.

In light of the above, Lord Neuberger concluded that the draftsman of s72 intended confidential information of a commercial nature and confidential private information to be included in the definition of intellectual property for the purposes of s72. Having reached that conclusion, it is unsurprising that Lord Neuberger found that the information taken from the claimants’ phones fell within that definition and that s72 operated to deprive Mr Mulcaire of the right to rely on PSI. Accordingly, Mr Mulcaire’s appeal was dismissed and he was ordered to provide the information sought by the claimants.

Human Rights Act

Mr Mulcaire also argued that, if (as the Court found), s72 did deprive him of the right to rely on PSI, it was incompatible with Article 6 of the ECHR (right to a fair trial). Lord Neuberger rejected this argument, saying that the claimants’ claim to vindicate their own ECHR right to respect for their private lives should not be outweighed by Mr Mulcaire’s right to a fair criminal trial when it was not clear that there would be such a trial and even if there were, that it would be unfair. In support of this contention, he pointed to several safeguards, including the protection in s72(3) that no statement or admission answering the questions in those proceedings can be admissible in evidence against that person in proceedings for any related offence. Other safeguards were the obligation on the courts to comply with the ECHR in civil proceedings and to ensure the fairness of the trial at common law and under the ECHR if there is a criminal trial.

Conclusion

As explained above, Lord Neuberger echoed questions raised by other judges as to whether PSI still has a place in civil disputes. In the modern age, it is difficult to see why defendants should be able to hide behind PSI as a means of avoiding the requirement to put potentially determinative evidence before the court. This is particularly the case where the rules provide, as s72 of the 1981 Act does, that the evidence cannot be used in subsequent criminal proceedings against the disclosing party and providing this more limited protection is likely to render the rules compliant with the ECHR and decisions of the ECtHR.

Nonetheless, Lord Neuberger accepted that the removal of PSI is a matter for Parliament and not the courts. Whether this will be done remains to be seen but it is perhaps more likely that Parliament will continue to introduce piecemeal exceptions to the rule in future legislation. In the meantime, as Coogan shows, parties who intend to rely on PSI should be aware that the court is unlikely to look kindly on such an attempt.

By Geoff Steward, partner, and Emma Jacob, solicitor, litigation and dispute resolution department, Macfarlanes LLP.

E-mail: geoff.steward@macfarlanes.com;emma.jacob@macfarlanes.com.

Note

  1. Other examples include the Theft Act 1968, the Criminal Damage Act 1971, the Health and Safety at Work Act 1974, the Financial Services and Markets Act 2000, the Land Registration Act 2002 and the Proceeds of Crime Act 2002.