Judge releases court papers in hacking cases
29 February 2012 by Rosalind English
Application by Guardian & Various Claimants v. NGN & Mulcaire- read judgment
A high court judge has allowed the media unrestricted access to documents submitted to the court for use in litigation by victims of phone hacking who have now reached settlements with News Group Newspapers (NGN).
Full disclosure of this material was resisted by the private investigator Glenn Mulcaire on the grounds that it would create a "substantial risk" that the course of justice in the criminal proceedings he faces will be seriously impeded or prejudiced. The Telegraph and other papers have now published passages of the documents which were previously censored following this order from Vos J, the judge who has presided over more than 50 hacking claims against NGN.
Mulcaire was jailed in 2007 together with Clive Goodman, the News of the World's then royal editor, after police found they had hacked phones belonging to members of the Royal household. The Telegraph reports that a section of the documents released in these proceedings that had been previously redacted
alleges that from 1998, when Mulcaire first started working with the News of the World, he "entered into a conspiracy with senior executives of [NGN] including Clive Goodman and Journalists A,B,C,D and E whereby he would, on their behalf, obtain information about individuals of interest to [NGN] journalists and use electronic intelligence and eavesdropping in order to obtain this information.
On 7th December 2011, Mr Mulcaire was arrested on suspicion of attempting to pervert the course of justice and unlawful interference in communications. He was bailed to re-attend at Sutton Police station in March 2012. He was not charged. But his concern, as put by counsel at this hearing, was that the likelihood of his being charged with a conspiracy to undertake unlawful phone interception some time in the near future meant that certain passages in the documents sought by the applicants might give the public more details of the allegations that might prejudice a trial.
So the issue for Vos J was whether the material concerning Mulcaire contained in the documents should be redacted before they were disclosed to the press.
Various orders had been made restricting access to documents in order to determine the "ring of confidentiality" in the phone hacking litigation, in particular Vos J's order on 20 May 2011 that certain confidential information that had been the subject of repeated hearings did not come into the public domain. These included
journalists' "corner" names, the identities of other victims of telephone interception, and private DDN numbers, mobile telephone numbers, passwords and PIN numbers.
But there was a wealth of other material in the court documents submitted for the now settled claims, and the passages in issue contained three categories of information:
(1) Allegations suggesting a specific arrangement to act unlawfully, bearing on a possible criminal charge (category 1).
(2) Allegations as to the extent of Mulcaire's unlawful activities and the detailed nature of those activities (category 2).
(3) Allegations relating to Mulcaire involving particular people who have not been the subject of criminal proceedings, whose telephones have not given rise to particular charges against Mr. Mulcaire in 2007, or who have not been the subject to statements in open court (category 3).
The media applicants claimed that the principle of open justice meant that there was a presumption under the Civil Procedure rules that disclosure would be permitted.
Vos J did not agree. The applicable rule is Part 5.4C(2) of the CPR which creates no such disclosure. And as far as the common law is concerned, there has been historically no right which enables a member of the public present in court to see, examine, or copy a document simply on the basis that it has been referred to in court or read by the judge.
If and in so far as it may be read out, it will "enter the public domain" in the sense already referred to and a member of the press or public may quote what is read out, but the right of access to it for purposes of further use or information depends upon that person's ability to obtain a copy of the document from one of the parties or by other lawful means.
The general principle, both in terms of the common law and under the Civil Procedure Rules, is that an individual or a body which is not party to a case has no right to documents on the court file except where the rules so specify. In exercising their discretion to grant access, judges must take in to account the competing interests of fair trial, expeditious procedure and privacy of the parties on the one hand, versus the principles of open justice and freedom of expression on the other.
This is easy enough to state in principle and until recently to apply in practice. However, court procedures have changed radically since the principle was formulated. Increasingly, because of considerations of costs and efficiency, judges rely on papers prepared by the parties and not read out in open court . These papers include not only disclosed documents, witness statements and skeleton arguments, but opening speeches as well. This modern practice raises new questions as to the extent to which non parties should be given access to such documents, which were once part of the general oral discourse of public proceedings. Therefore the "general tenor of the authorities" is to favour disclosure to the public of materials which in proceedings in open court entered into the public domain (though perhaps not actually read out in court).
Reviewing the authorities, Vos J observed that there is "no longer the opportunity for public understanding" which until recently has been afforded by a trial process which has assumed, and made provision for, an opening speech by counsel. Now that written opening speeches are submitted and not read out, or even summarised in open court before the calling of the evidence, it is said that an important part of the judicial process, namely the instruction of the judge in the issues of the case, "has in fact taken place in the privacy of his room and not in open court". Whilst, in this new context, the important private rights of the litigant must command continuing respect, so too must the no less important value that justice is administered in public and is the subject of proper public scrutiny.
In the light of this, and the fact that most of the matters referred to in the passages in question were already in the public domain, the judge concluded that the balance should come down in favour of disclosure. In the end, he said, the material did not provide "anything like a blueprint for phone hacking." The contested passages simply recite what Mulcaire is widely reported to have done – namely blagging, and so on. Vos J had confidence that a "properly directed jury" faced with specific charges, when and if they are laid, would be perfectly capable of focusing on those charges and excluding "the noise of the extraordinary publicity surrounding Mr Mulcaire's activities".
There remains a real and vital public interest in the dissemination of accurate information about the course these proceedings are taking, the settlements that have been entered into, and both the allegations that are made by the Claimants against the Defendants, and the admissions made by the Defendants.
For all these reasons, the judge thought it "entirely legitimate" for GNM and other media organisations to wish to see unredacted copies of the core documents on the basis of which these proceedings have been and are being conducted. The only exception to this disclosure was the alleged modus operandi given in NGN's admissions. In Vos J's view, publication of these details could impede the administration of justice and have an adverse impact on Mulcaire's trial. He also ordered the use of ciphers in place of specific journalists' and specific executives' names where they appear in the relevant documents.
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