In Stephen John Coogan v News Group Newspapers Ltd  EWCA Civ 48 the Court of Appeal of England and Wales upheld orders from the High Court of England and Wales requiring the private investigator for the former News of the World newspaper, Mr Mulcaire, to provide information regarding his phone hacking activities, despite Mr Mulcaire’s argument that to do so would infringe his privilege against selfincrimination.
Mr Coogan claimed that Mr Mulcaire acted in breach of confidence by accessing messages on Mr Coogan’s phone, without permission. The messages contained both commercial and personal information. Mr Coogan applied for a court order that Mr Mulcaire provide information relating to voicemail interceptions he performed, including the identity of the persons who had instructed him and the identity of the persons to whom he subsequently supplied the information. Mr Mulcaire refused to provide this information, asserting the PSI.
Mr Coogan maintained that the commercial information, at least, fell within Section 72 of the Senior Courts Act 1981, meaning Mr Mulcaire was not permitted to rely upon the PSI. In the first instance, Mr Justice Mann and Mr Justice Vos determined that Mr Mulcaire was not excused by PSI from answering any questions put to him during the proceedings or from complying with orders made under Section 72. Mr Mulcaire appealed.
The first issue considered was the construction of Section 72, which applies to “proceedings for infringement of rights pertaining to any intellectual property”. For these purposes, Section 72(5) defines intellectual property as “any patent, trade mark, copyright, design right, registered design, technical or commercial information or other intellectual property”. The Court of Appeal held that the words “commercial information” meant confidential information of a commercial character and that “other intellectual property” applied to confidential, noncommercial (i.e., “private”) information.
Section 72 only prevents the PSI from being relied upon where there is a risk of criminal proceedings for “any offence committed by or in the course of the infringement”. Mr Mulcaire submitted that, whilst those words of limitation would not prevent him from being required to give information as to the messages that he had intercepted, they did not extend to giving information as to who had instructed him, or to whom he had passed on the information, as these were outside the course of infringement.
In respect of providing details of the persons to whom the confidential information was passed, the Court held that as the information was confidential and obtained by Mr Mulcaire in an unauthorised way, he had committed a further infringement of Mr Coogan’s rights when he passed the information on. Therefore, that information should be disclosed. As for disclosing details of the persons whom had instructed him, the Court held that where a person intercepts a voice message on the instructions of a third party, the giving of those instructions “can fairly be said to be part and parcel of the interception”. Therefore, details of the third party should be disclosed.
Finally, the Court of Appeal held that Section 72 was compatible with Mr Mulcaire’s Article 6 right to a fair trial. In reaching this decision the Court of Appeal noted there was no absolute right to PSI and took into account the Section 72(3) protection against the use of the information in criminal proceedings for any related offence.
Mr Mulcaire has indicated an intention to appeal the decision to the Supreme Court.
The decision is significant in that it would appear that any confidential information will now be caught by Section 72, whether or not it is of a commercial nature. It also provided some interesting commentary on the PSI. While the PSI is a long-standing feature of English common law, the Master of the Rolls expressed his opinion that PSI has “had its day” in this judgment, but he also made it clear that “it is for the legislature, not the judiciary, to remove it, or to cut it down”.