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'Self-incriminators' may be forced to tell the court what they know

High Court extends ability to strip people of right not to self-incriminate

Internet Security Threat Report 2014

People accused of misusing confidential commercial or technical information have lost the right to avoid self-incrimination in court cases, following a High Court ruling.

The ruling means that a law previously thought to apply only to intellectual property cases now applies to any case in which confidential commercial or technical information is involved, according to one expert.

The ruling means that the private investigator jailed in the News of the World phone-hacking case cannot refuse to give evidence to court and must hand over information about other alleged victims of hacking.

The ruling also means that companies in other cases will be able to force opponents to give evidence in a much broader range of confidential information cases, said Helyn Mensah, a barrister specialising in intellectual property law at Pinsent Masons, the law firm behind OUT-LAW.COM.

A person has a right not to answer questions or hand over information if it would incriminate them, but a law passed to tackle video piracy in the 1980s removes that right under certain circumstances.

The Senior Courts Act of 1981 says that the privilege against self incrimination (PSI) is not available in "proceedings for infringement of rights pertaining to any intellectual property or for passing off".

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

Mensah said: "Following last Friday's judgment, it is now clear that the phrase 'intellectual property' in the context of the statutory exception is not limited to traditional forms of intellectual property such as patents, trade marks, copyright and registered or unregistered designs.

"The provision extends to any technical or commercial information which can be protected by an action for breach of confidence or breach of contract, whether or not that information can be regarded as intellectual property.

"The relevance of this is in a trade context is that businesses seeking to protect confidential technical or commercial information can object to any defence which seeks to rely on the privilege against self incrimination," said Mensah. "Companies or individuals considering invoking the privilege to avoid civil or criminal penalties should accordingly beware."

The case involved Glenn Mulcaire, the private investigator who was jailed in 2007 for his part in the illegal interception of mobile phone messages for the News of the World newspaper. He now faces a number of civil suits related to other instances of alleged hacking.

Football pundit Andy Gray and comic Steve Coogan both claim that Mulcaire intercepted their messages and had asked the High Court to strip him of his right to avoid self-incrimination.

Gray and Coogan argued that because information on their mobile phone voicemail boxes was confidential and because it was commercial or technical, Mulcaire should not be able to invoke the right not to incriminate himself.

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