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Wednesday, 8 September 2010

Phone Hacking

Another "Law in the Headlines" post for Halsbury's Law Exchange, published here.

The issue of alleged phone tapping of various public figures has once again been occupying much space in the press. The former royal editor of the News of the World, Clive Goodman, and a co-conspirator, Glenn Mulcaire, were jailed in January 2007 for four months and six months respectively, after pleading guilty to conspiracy to intercept communications without lawful authority. The newspaper’s editor at the time, Andy Coulson, accepted responsibility and resigned. Mr Coulson is now Director of Communications for the Conservative Party.

The Guardian newspaper made further allegations in 2009 of phone tapping, leading to investigations by the Press Complaints Commission and the House of Commons Culture and Media Committee.

Obviously there is vehement disagreement on what (if anything) was done, when it was done and by whom it was done. Equally obviously it is not the place on this forum to speculate on the truth of any of the allegations. It is however possible to state the underlying legal points quite shortly.

The primary legal issue is whether or not a criminal offence has been committed. The relevant offence would be pursuant to s 1(1) of the Regulation of Investigatory Powers Act 2000, which provides:

1 Unlawful interception

(1) It shall be an offence for a person intentionally and without lawful authority to intercept, at
any place in the United Kingdom, any communication in the course of its transmission by means
(a) a public postal service; or
(b) a public telecommunication system.
(2) It shall be an offence for a person—
(a) intentionally and without lawful authority, and
(b) otherwise than in circumstances in which his conduct is excluded by subsection (6)
from criminal liability under this subsection,
to intercept, at any place in the United Kingdom, any communication in the course of its
transmission by means of a private telecommunication system.

The penalty for infringement is a prison sentence of up to two years for conviction on an indictment, or a fine not exceeding the statutory maximum if it is a summary conviction (s 1(7)).

Section 1(3) also provides that any interception of a communication without lawful authority is actionable at the suit or instance of the sender or recipient, or intended recipient.

These are not light consequences, as the previous sentences (which involved earlier legislation as well) demonstrate.

There is a further potential issue. Rumours are being made that apparently some people whose communications were intercepted have had their silence bought. Much depends on the precise circumstances (and again, it cannot be emphasised too strongly that nothing is offered here on the truth of any allegations or rumours) but any such deal where a criminal offence might be involved runs the risk of a charge of perverting the course of justice, an offence with a very wide scope both as to its commission and penalty.

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