If the Guardian’s right that News Group Newspapers have illegally hacked, or paid investigators to illegally hack, the mobile phone messages of celebrities, then those investigators and journalists may have committed the offence of unlawful interception under section 1 of the Regulation of Investigatory Powers Act 2000. On the face of it the offence seems to cover only the intentional interception without lawful authority of any public telecommunication in the course of its transmission; the intention of section 2(7) seems however to be to include the interception of voicemail, though it looks to me unfortunately and obscurely drafted.

The maximum sentence is two years, or an unlimited fine, under section 1(7); under section 1(8), the DPP would have to give consent for any prosecution.

The journalists may have committed the offence themselves under section 8 of the Accessories and Abettors Act 1861, by having procured illegal hacking by investigators; alternatively they may be guilty of conspiring to unlawfully intercept communications, under section 1(1) of the Criminal Law Act 1977. Any editors who agreed to illegal hacking would also be guilty as conspirators. Under section 3(3) of the 1977 Act, the maximum penalty for such a conspiracy would be the same two years imprisonment; plus the court would also have a power to fine anyone found guilty, under section 127 of the Powers of Criminal Courts (Sentencing) Act 2000.

Another legal aspect of this scandal that’s worth examining is the talk there’s been of News Group’s lawyers having “sealed the court file” after settlement was reached in Gordon Taylor’s claim against them. I can’t claim to be a master of the minutiae of civil procedure, but sealing the court file sounds an American concept to me. What News Group may have done is persuade Master Moncaster on an application under rule 5.4C(4) of the Civil Procedure Rules to restrict non-parties’ access to the claim and defence in the case. Regardless of any such order, non-parties to the case would in any event have had to apply to the court in for permission to see, for instance, lists of the documents each side disclosed; so I don’t think the entire chain of documentary evidence thrown up by the case would be public in the normal way of things. But it’s quite true that that such an order makes it more difficult to find out what was alleged in the case, and what was admitted. We should know on what basis the application was made, and on what basis it was granted.

Finally, Andrew Neil at least is interested in whether News Group might now fear a “class action”, presumably for breach of confidence or invasion of privacy, on behalf of the hundreds of people it’s alleged had their phones hacked. Well, a “class action” in the true American sense – of one person claiming on behalf of an abstract, unidentified class and obtaining a judgment that could potentially apply to anyone in that class – isn’t possible in England and Wales; but there are procedures that enable a group of people to save costs at least to some extent in taking on a powerful defendant like News Group. Representative actions are possible, in which one person takes the lead if a number of identified claimants do actually claim for invasion of privacy; or if there were large numbers of claimants they could apply for a group litigation order as a way of handling the litigation. This 2006 article by the Herbert Smith lawyer Simon Clarke explains a bit more about representative actions and GLOs, and how they differ from American class actions.

2009-07-10T07:07:00+00:00Tags: , , |