Restricting the role of privilege against self-incrimination

The phone hacking saga rumbles on. Amid the furore, the Court of Appeal has decided that Glenn Mulcaire, the private investigator at the epicentre of this media maelstrom, cannot rely on the privilege against self-incrimination (Coogan v News Group Newspapers Ltd [2012] EWCA Civ 48).

Privilege against self-incrimination (PSI) protects a person from being compelled to produce documentation or provide information that might incriminate him in criminal proceedings, or otherwise expose him to a penalty. PSI is not, however, an absolute right, and is subject to several statutory exceptions.

Section 72 of the Senior Courts Act 1981 (SCA) removes PSI in civil cases in the High Court regarding infringement of 'rights pertaining to any intellectual property'. Intellectual property includes any 'technical or commercial information or other intellectual property' (section 72(5)).

In Coogan, the claimant sought an order requiring Mulcaire to provide information identifying the individuals who instructed him to intercept his phone messages and the nature of the interception itself. Intercepting voice messages being an offence under the Regulatory of Investigatory Powers Act 2000, Mulcaire asserted PSI on the basis that providing this information would incriminate him. The Court of Appeal upheld the claimant's claim that information obtained by phone tapping constituted intellectual property such that Mulcaire could not rely on PSI.

Lord Neuberger concluded that 'as a matter of both principle and practice', non-commercial confidential information fell within the section 72(5) definition of 'technical and commercial information' because of the words 'or other intellectual property' that followed the expression. He observed that it would be surprising if you could rely on PSI in a breach of confidence claim relating to personal information, but not in an otherwise identical claim relating to commercial information. Equally, the same information could be commercial in one person's hands and ?personal in another's. It could not be right (and was not the draftsman's intention) that section 72 might or might not apply depending on how a claim was pleaded.

Defining confidential information

In Coogan it did not matter that all of the intercepted messages were not confidential, as long as some of them were. It was Lord Neuberger's view that if you can prove that the intercepted voice messages would ordinarily contain a significant amount of ?confidential information, section 72 will normally apply and PSI will be lost. The court did not define a 'significant amount', save to say that it meant 'more than insignificant'. In fact, it held that even though there may be numerically fewer confidential messages, this would be outweighed by the greater importance of the confidential messages.