Self-incrimination rights apply if accused has allegedly misused personal information, Supreme Court rules

Out-Law News | 05 Jul 2012 | 3:07 pm | 4 min. read

Individuals' right not to self-incriminate themselves is lost if it is alleged that they misused confidential technical or commercial information, the UK Supreme Court has said.

Individuals can invoke a right not to self-incriminate if the information they are accused of misusing is purely personal in nature, the Court said. In circumstances where information is both personal and commercial in nature courts will have to decide whether or not the accused has a right not to self-incriminate, it indicated.

The Court came to these conclusions in a ruling involving private investigator Glenn Mulcaire. It ordered Mulcaire to disclose who tasked him with allegedly hacking into the voicemails of Nicola Phillips, an assistant to publicist Max Clifford.

Phillips alleges that Mulcaire unlawfully intercepted her voicemail messages or that he or someone at the now-defunct News of the World newspaper instructed others to do so. The Court of Appeal previously ruled that information contained on her mobile phone voicemail was confidential and that because it was commercial or technical in nature Mulcaire cannot avoid disclosing the information on the basis that he would incriminate himself by doing so.

Mulcaire appealed the decision to the Supreme Court, but his appeal was rejected. The findings were based on the Court's reading of the Senior Courts Act, which limits individuals' rights not to self-incriminate, according to the ruling seen by

Established case law in the UK has provided individuals with a right not to have to answer questions if by doing so they risk facing a "criminal charge, penalty or forfeiture which the judge regards as reasonably likely to be preferred or sued for". This right has also been written into law relating to civil proceedings under the Civil Evidence Act.

However, under some UK legislation the privilege against self-incrimination is restricted.

Under the Senior Courts Act a person "shall not be excused" from answering questions put to them in civil High Court legal proceedings "for infringement of rights pertaining to any intellectual property or for passing off; proceedings brought to obtain disclosure of information relating to any infringement of such rights or to any passing off; and proceedings brought to prevent any apprehended infringement of such rights or any apprehended passing off" even if doing so " would tend to expose that person ... to proceedings for a related offence or for the recovery of a related penalty".

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

The Act also states that any statement or admission given by an individual in being forced to answer questions related to the infringements or proceedings listed cannot be used against them as evidence "in proceedings for any related offence or for the recovery of any related penalty" except in relation to cases of perjury or contempt of court.

The Supreme Court said the drafting of the Senior Courts Act meant purely personal information would not be considered as intellectual property.

"The obviously correct conclusion [is] ... that the answer [to the question: can personal information be ‘other intellectual property’?] is no, as the draftsman of the definition limited its ambit to ‘technical and commercial information’," the Court said in its ruling.

The Court did not set out exactly when personal information, mixed with information that was commercial in nature, could be described as 'intellectual property', but said that in some instances it would.

"It is a recognition that in the world of celebrities ... there is commercial value in even the most intimate personal information, subject only to the restraints imposed by the developing law of privacy. For a few celebrities, their colourful private lives are part of their stock in trade. The implication is that, if the definition [of 'intellectual property'] in [the Senior Courts Act] remains in its present form, the court may have some difficult borderline cases as to the meaning of 'commercial information'. But that is not a reason for adopting an unnatural construction of the definition as a whole," it said.

The Supreme Court ruled that the information contained on Phillips' voicemail could be considered as "commercially confidential information".

"Ms Phillips’s pleading, verified by her statement of truth and her solicitor’s witness statement, is to the effect that the voicemail messages left by her clients contained commercially confidential information, including information about 'finances, incidents in which the police have become involved, personal security or publicity issues, commercial business transactions, professional relationships and future career plans.'," the Supreme Court's ruling said. "Neither the pleading nor the witness statement attempts to quantify the proportions of personal and commercial information, but there was no reason to suppose that the latter was not significant."

"It is also pleaded ... that Ms Phillips regularly spoke on her mobile phone to 'clients, predominantly entertainers and celebrities, many of whom are well-known; individuals who are suddenly caught up in a breaking news story; newspapers and journalists; producers, editors, researchers, and journalists from various sectors of the media, including TV, radio, newspapers and magazines.' I would therefore uphold ... the Court of Appeal’s conclusion that Ms Phillip’s proceedings are 'proceedings for … rights pertaining to … intellectual property' within the meaning of [the Senior Courts Act]," it said.

The Court said it did not matter that 'technical and commercial information' was not "strictly speaking" 'property'. The "clear statutory language" meant that it had to be considered as such when determining whether self-incrimination rights apply, it said. The Court added that it was "irrelevant" whether or not 'confidential information' could be described as property.

Additionally, the Court held that there was "a sufficient connection between the subject-matter of ... [Phillips'] civil proceedings and the offence with which ... [Mulcaire] (as the person required to make disclosure under compulsion) has a reasonable apprehension of being charged."

Because of these findings Mulcaire held no right to avoid self-incrimination, the Supreme Court ruled. Mulcaire was jailed in 2007 for his part in the illegal interception of mobile phone messages for the NotW.