Original URL: http://www.theregister.co.uk/2011/03/03/high_court_extends_ability_to_strip_people_of_right_not_to_self_incriminate/

'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

By OUT-LAW.COM

Posted in Law, 3rd March 2011 11:48 GMT

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.

The High Court agreed, ruling that there is no fixed definition of "intellectual property" and that the law should not be defined too narrowly.

Lawyers for Mulcaire argued that the House of Lords ruling on whether Hello! magazine could protect photos of a celebrity wedding made it clear that confidential information was not a form of intellectual property. They said that this meant that Mulcaire should not be bound by the exception to PSI.

Mr Justice Vos agreed that the Hello case meant that confidential information was not necessarily intellectual property, but said that to take the exception to PSI to be valid only in intellectual property cases was too restrictive an interpretation.

"I do not accept [Mulcaire's lawyers'] suggested limitation on the meaning of 'technical or commercial information'," he said. "If the information needed also to be a species of intellectual property, it would be very narrow indeed, and there is no limitation of that kind implied from the words of the legislation. Rather, I take the view that the 'technical or commercial information' with which [the exception] is concerned is any such information that can be protected as such by action."

"A review of intellectual property textbooks shows that there is no universal definition of the term [intellectual property], which is no doubt why Parliament has adopted a variety of definitions for differing situations," said the judge.

"Parliament must be taken to have been deliberately expanding the meaning of 'intellectual property' when it included the words 'technical and commercial information' in the string of meanings alongside patent, trade mark, copyright, and registered design (and the later added 'design rights' in 1988)," said the ruling.

Mulcaire cannot now refuse to answer questions or provide information in the case, and must also provide information about other alleged victims of phone hacking whose identities had been blacked out in documents provided to the Court, the High Court said.

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