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.
Whatever the civil procedure rules say, they ought not to be used to cover up any criminality. Given the high profile people involved, this story may well run for some time but I will not be holding my breath awaiting any prosecutions of managerial figures.
it bodes well for cameron's campaign to restore honesty to public life. but i would say that, wouldn't i?
That does seem a little sketchy. I am an American law student and found this blog interesting. Thanks.
Mike
TOPEKA LAWYER
Carl,
It seems to me that hacking into voicemail messages do not come within the words of s 1 of RIPA. Doubtless the section could be interpreted to include this conduct, which probably falls within the purpose or mischief of it. However the natural and ordinary meaning of the words appear to exclude hacking into voicemail messages, and a court should not go beyond the natural and ordinary meaning of the words in interpreting a penal statute. Indeed it should construe penal statutes narrowly, favouring the defendant in cases of ambiguity: Daly v. Cannon, per Lord Goddard CJ.
Do you disagree with my interpretation of s 1 of RIPA?
I do agree, on the wording on s1 taken alone. As I said I think this turns on s2(7), though, which in effect deems interfering with the storage of messages as though it's interception at the time of transmission. My problem with it is that it's not clear to me whether tapping into a voicemail after it's been recorded is really interception when the phone system "is used for storing it". Perhaps if voicemail stores the message each time you access voicemail, that works. But on a natural layman's approach you'd think the caller "used the system for storing" a voicemail when they record it, and that the owner of the phone does so the first time they "save" it (which might I suppose have been the point at which NotW is alleged to have intercepted them) but that later replaying of the messages would not amount to storage.
Phone Hacking?Oh that is really bad issue.Thanks for giving this information.
Apostille info