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Phillips v Mulcaire (Rev 1)

Phillips v Mulcaire (Rev 1)

Case [2012] UKSC 28 4 July 2012

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Summary

Trinity Term
[2012] UKSC 28
On appeal from: [2012] EWCA Civ 48

JUDGMENT

Phillips (Respondent) v Mulcaire (Appellant)

before

Lord Hope, Deputy President
Lord Walker
Lord Kerr
Lord Clarke
Lord Dyson

JUDGMENT GIVEN ON

4 July 2012

Heard on 8, 9 and 10 May 2012

Appellant
Gavin Millar QC
Alexandra Marzec
(Instructed by Payne Hicks Beach)

Respondent
Michael Beloff QC
Jeremy Reed
(Instructed by Taylor Hampton)

LORD WALKER (with whom Lord Hope, Lord Kerr, Lord Clarke and Lord Dyson agree)

The issues

This appeal raises two issues as to the common law privilege against self-incrimination. The first issue is as to the meaning of the words "proceedings for infringement of rights pertaining to … intellectual property" in section 72(2)(a) of the Senior Courts Act 1981 ("the 1981 Act"). The second issue is whether, on the footing that the appellant, Mr Glenn Mulcaire, would by complying with an order of Mann J made on 19 November 2010 tend to expose himself to criminal proceedings for conspiracy, such proceedings would or would not be for a related offence within the meaning of section 72(5) of the 1981 Act.

The facts

These issues arise in the context of the interception of mobile phone messages, at present a topic of widespread interest and concern. The respondent, the claimant in the proceedings, is Ms Nicola Phillips. She worked for Max Clifford Associates ("MCA"), the corporate vehicle of Mr Max Clifford, the well-known public relations consultant. Her responsibilities included both trying to place in the media favourable stories about clients of MCA, and trying to prevent the placing in the media of unfavourable stories about them.

Mr Mulcaire was during 2005 and 2006 working as a private investigator. He was often engaged by staff on the News of the World, then a Sunday newspaper published by News Group Newspapers Ltd ("NGN"). NGN is a party to the proceedings but did not appear before the Court of Appeal or in this Court. During the same period Mr Clive Goodman was employed by NGN as a reporter on the News of the World with responsibility for news about the royal family and household.

After an investigation by the Metropolitan Police Mr Mulcaire and Mr Goodman were charged with one count of conspiracy to intercept communications, contrary to section 1(1) of the Criminal Law Act 1977 ("the 1977 Act"). This charge related to voicemail messages of three members of the royal household. Mr Mulcaire was also charged with five further counts under section 1(1) of the Regulation of Investigatory Powers Act 2000, one relating to voicemail messages on Max Clifford's mobile phone. In November 2006 Mr Mulcaire pleaded guilty to all these counts, and Mr Goodman pleaded guilty to the count of conspiracy. In January 2007 Mr Mulcaire was sentenced to a total of six months' imprisonment, and Mr Goodman to four months.

During 2008, 2009 and 2010 a large number of civil claims were commenced by individuals who claimed that messages on their mobile phones had been…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Phillips v Mulcaire (Rev 1)

Details

Case: [2012] UKSC 28
Decision Date